SNOCLASS

SPORTS AND ENTERTAINMENT LAW

Week 1

“Getting Personal”

Course Lecturer: Sarah Ochwada- Retired Runway Model, Novice Archer, Arbitrator, Sports
& Entertainment Lawyer

Contacts:

 Twitter: @SnoLegal
 Instagram: SnoLegal
 Facebook: SnoLegal
 YouTube: SnoLegalTV
 Blog: snolegal.wordpress.com

Class Hashtag: #SnoClass

Week Topic Expected Learning Activities

Outcomes
1 “Getting 1) Critical thinking 1) Introductory YouTube trailer,
Personal” and creative problem official social media handles
-Introductions solving. (@snolegal, @snoclass and
2) Identify the core SnoLegal TV) and hashtag
- Overview of
legal areas which (#SnoClass)
Sports & form the basis of 2) Core References for the Course:
Entertainment Law sports law and a. *SnoClass website –
- Personality entertainment law. snoclass.com
Rights 3) Define b. Court of Arbitration for Sport
- Image Rights Personality, website- tas-cas.org
- Personality Personality Rights c. Swiss Arbitration Decisions-
& Image Rights swissarbitrationdecisions.com
Rights
4) Define Reputation d. Other blogs, websites and
Management 5) Explain loss of articles as may from time to
- Sculptor’s rights reputation via time be discussed in class.
- False Defamation & False Sports Law Books
Endorsements - Light a. Sports Law, 4th edition,
Passing Off 6) Define Good Will Routledge Oxford, 2012 by
-Communication (perception of value Gardiner S; O’leary J; Welch
and quality of a R; Boyes S and Naidoo U
skills
business and its 3) Watch YouTube video “Alexa
products) as it relates Chung, British Vogue – Fashion
to personality Law”
7) Explain loss of 4) Watch “The Good Wife” – Season
good will via Passing 6 episode 13 Defamation suit for
Off & False Colin Sweeney who accuses a TV
Endorsement production company of defaming him

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 8) Explain with the depiction of a character very
posthumous rights much like him murdering his wife.
to publicity. 5) Case studies
9) Explain the - Usain’s Bolt
principle of action - The Kemboi dance
personalis moritur - YeGold by East African Breweries
cum persona - Michael Jordan v Qiaodan Sports
(personal causes of - Ed O’Bannon v. NCAA
action die with the - Edmund Irvine v Talksport Ltd
person) [2002] EWHC 367 (Ch)
10) Evaluate the right - Robin Fenty (Rihanna) v Arcadia
to privacy Ltd (Topshop) [2013] EWHC 2310
(protection from (Ch)
intrusion, - Haeland Laboratories Inc v Topps
observation, Chewing Gum Inc 202 F, 2d 866 (2d
surveillance, Cir. 1953) – celebrity’s rights to
disparagement) control use of image for economic
11) Discuss the gain
exceptions to the right - Naomi Campbell v Mirror Group
to privacy Newspapers (2004) UKHL 22 –
12) Evaluate the right Right to privacy
of publicity for - Bonoko
celebrities and non- - Ni kama ndrama ni kama video
celebrities - Githeri man of 2017
13) Explain non- - Ugali man of 2018
commercial users of - “Ain’t nobody got time for that”
image rights, and use - The man with the Golden Voice
of stock photos - Michael Jackson hologram at 2014
14) Assess the moral Billboard Music Awards
rights that artists -Tupac Shakur hologram at 2012
enjoy over their work Coachella
(i.e. right of paternity, - Miquela Sousa/ Lil’ Miquela
right to protection (virtual influencer on Instagram)
against distortion, - Shudu Gram (the first digital
mutilation, supermodel on Instagram)
modification, - The Catholic Imagination - From
derogatory action) Madonna’s Just Like a Prayer to the
15) Discuss the MET Gala 2018 Heavenly Bodies
emergence of - Beyoncé and the Pieta by
Artificial Michaelangelo
Personalities/Virtual - Charging Bull v. Fearless Girl
Influencers 2017
16) Personality rights 6) Assignment 1: Draft an advisory
and viral content report on how to protect Ethic’s brand
(content, context & following their altercation at Koroga
control) Festival. (4 marks)

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INTRODUCTIONS

Sports & Entertainment Law is an emerging field of law in Kenya. It is exciting and highly
practical. For this reason, the class is designed to be as dynamic as the subject itself.

“From a student’s point of view, sports and the law constitute an interesting field of
study. The discipline furthers an understanding of the many intersections between life
and the law; gives an initial motivating point of access to other areas of law;
familiarises the student with the many points of contact between the different areas
(leading to an “aha-experience”) and sharpens his or her skills in comparative
judgment. Sports law is a cross-sectional matter and as such it fascinates. Compared
to other disciplines, cross-sectional disciplines also offer a “home advantage” to
lawyers; lawyers can bring to these disciplines their ability to systematise, their sense
of perspective, and their ability to predict the outcome when conflicts have to be
resolved by means of litigation.” The Appeal of Sports Law – by Prof. Dr. Klaus
Vieweg1

Use of social media during class is encouraged as lots of the course material and examples will
be drawn from the internet. (Use #SnoClass to join the online conversation)

Being the first day, our focus was on getting to know one another and giving a brief outline of
the course for the entire semester, and the aspects of personality and branding across sports and
entertainment.

THE POWER OF BRANDING

A good brand leaves a lasting impression. A powerful brand needs legal protection. In both
sports and entertainment industries, clients require lawyers to help them legally protect their
brands and other forms of Intellectual Property (IP) from unauthorised use or exploitation.

Through self- introductions, twitter handles and other class exercises we learned about the
power of branding.

PERSONALITIES & ENGAGEMENT

Personality Rights and Image Rights

Image Rights includes the player’s name, nicknames, likeness, image, voice, photograph,
signature, autograph, initials, statements, endorsement, physical details, voice, film (including
computer generated or animated portrayal), and other personal characteristics and
identification of an individual.

Image rights is a part of the general right of personality which consists of the person’s right to
protect his honour, integrity, name, voice, life, freedom, privacy, image etc.

1
http://www.irut.jura.uni-
erlangen.de/Forschung/Veroeffentlichungen/OnlineVersionFaszinationSportrecht/FaszinationSportrechtEnglisc
h.pdf

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An individual has the exclusive right to market his or her image, in particular for personal gain.
This can be done through:

1. Assignment of image rights agreements;

2. Exploitation of image rights agreements;
3. Sponsorship agreements;
4. Specific license for the use of image or other rights (licensing agreements)

These interconnected types of agreements can be exclusive or non-exclusive, long-term or just

for one single occasion and they might assign or license all or part of the rights and for every
possible or for specific use

In December 2012, Guernsey became the first jurisdiction to recognise Image Rights in a
registrable form.

This legislation is anchored on two Concepts:

1) Registered Personality – Images registered against or associated with the registered

personality
2) Effect – Only infringed by unauthorised use in Guernsey.

Natural persons can register their names, nicknames, etc. as trademarks. Trademark Law is a
secure protection in cases of a direct, obvious and serious infringement of a trademark. In order
to register a name, nickname or other symbol by which they are known, public personalities or
celebrities need to show both a reputation of the said mark and also to prove that there is a
history and reputation of trading under that name (the case of Andrew Cole and ‘King Cole’
mark). Lack of reputation and fame in the trademark sense might have as a consequence the
invalidity of a trademark or might make the trademark not enforceable. Reputation can be
defined as the commonly held opinion of a person’s character.

Right to privacy versus right of publicity

The right of publicity is the right of every human being to control, limit, or profit from the
commercial use of his or her name, likeness and/or identity.

Consent is required of the person portrayed having their picture published. When that right is
infringed, the individual’s publicity rights have been violated.

The right of publicity, first acknowledged in 1953 in the case of Haelan Laboratories, Inc. v.
Topps Chewing Gum, Inc., is enabling an athlete to control the exploitation of his name, image
etc. and decide on the respective use of his image and its presentation to the public

Exception: Pictures of sportspeople taken while performing but the more famous the person,
the broader the concept of public interest.

N/B- the distribution of copyrighted material via the Internet is a very popular method to use
the name and image of a sports star without his consent and can be very difficult or even

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impossible in some cases to be prevented even when the sports star is the owner of the
copyright.

Common law misappropriation actions:

In order for an individual to be successful in a common law misappropriation action, he needs

to establish that:

i) The defendant used the individual’s name, image and/or likeness;

ii) The use and appropriation of the individual’s name, image and/or likeness provided the
defendant some commercial profit and/or advantage;
iii) There was no consent given;
iv) There was a resulting injury from the actions of the defendant.

Famous people with sufficient goodwill can protect their name and image if unauthorised
exploitation was done in a way which suggest that the celebrity had endorsed a product.
Goodwill can be defined as the perception of value and quality of a business and its products.
Passing off is a misrepresentation and unauthorised use of image or personality rights by a
trader which damages the goodwill of another. Requirements for a false endorsement passing
off case:

i) Use of image or name of the plaintiff for commercial purposes;

ii) Evidence that the crucial period the plaintiff had fame and enjoyed reputation/goodwill
iii) Evidence that due to defendant’s actions there was an implicit representation or
endorsement, or that a significant part of the target group would understand and believe
that there was such representation or endorsement

*Further Reading on False Endorsement:

1) Edmund Irvine v Talksport Ltd [2002] EWHC 367 (Ch)

2) Robin Fenty (Rihanna) v Arcadia Ltd (Topshop) [2013] EWHC 2310 (Ch)
3) Haeland Laboratories Inc v Topps Chewing Gum Inc 202 F, 2d 866 (2d Cir. 1953

The right of privacy is the right not to have your name or likeness appropriated by another
without your permission, your privacy intruded, your private information to be made public,
and to not be placed in a false light. Consent is required of the person portrayed to have their
picture taken.

The European Convention on Human Rights - Article 8 of the ECHR contains an express right
to privacy. This is counterbalanced with Article 10 of the ECHR, which contains an express
right of freedom of expression.

One of the biggest problems a sports star would have to face in protecting and enforcing his
image rights, is the Internet and its reality, which sometimes makes it impossible to control it
and very difficult to bring an actual action against infringers.

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Posthumous Rights to Publicity

As a general rule, the right to publicity dies with the person. Heirs, next of kin, or the deceased’s
estates are not allowed to bring suit to recover for the unauthorized use of the deceased’s
likeness. Just as in the case of defamation suits, the principle of actio personalis moritur cum
persona applies. Meaning; personal causes of action die with the person. It is presumed that
the deceased cannot be harmed as they can no longer suffer from loss of reputation or injured
dignity.

However, right to publicity after death varies from jurisdiction to jurisdiction. Posthumous
right of publicity protects the financial interest of the deceased’s heirs, owing to the deceased’s
commercial value in his/her identity regardless of his/her death. A right to damages exists
even when the individual in question has passed away in order to protect the said person’s
dignity.

Posthumous rights to publicity only applies if the person’s name, identity or likeness had
inherent value at the time of death, and the estate or next of kin for such deceased person
may sue for damages if the right of publicity is infringed upon.

In order to prove infringement, one must demonstrate that there was an enforceable right in
the identity of a human being, and that the defendant used the deceased’s name, image or
likeness without permission and it is probable that it will lead to commercial damage of the
persona.

YouTube Playlists:

1. Introductory Video- SnoClass Sports & Entertainment Law Lectures

https://www.youtube.com/playlist?list=PLatPzHIBKWxyiT5Q7vi1ZrJy_MbkuQD1h
2. #SnoClass - Entertainment Law Practitioners and Courses
https://www.youtube.com/playlist?list=PLatPzHIBKWxwqbkVJgjeIDLZIDeNseVpq
3. #SnoClass – Sports Law – the courses & the practitioners
1. https://www.youtube.com/playlist?list=PLatPzHIBKWxxcs5SkApvIdysS6h2fwAzJ
2. #SnoClass – Image Rights (Image Rights visually explained)
https://www.youtube.com/playlist?list=PLatPzHIBKWxwURVJsIHW2x_yh09Jw7R
C5
3. #SnoClass – Sports sponsorships
https://www.youtube.com/playlist?list=PLatPzHIBKWxyfo90C8TCtlLUDquTo6XdX

Assignment 1:

Assignment 1: Draft an advisory report on how to protect Ethic’s brand following their
altercation at Koroga Festival. (4 Marks)

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