But the image rights relating to sports stars are uniquely challenging and complex because of the multitude of stakeholders involved.
A footballer (let's use Wayne Rooney as an example) will have a range of personal deals (Nike, Coca Cola, EA Games and Pringles to name a few), as well as owing commitments to his club's sponsors, and, if he is successful, the picture becomes even more complex with sponsors of the national team and national leagues and cups, all deriving some rights to the player's image and rightly expect to drive exposure from that association.
Aside from the problems faced by these interested parties in structuring their deals to avoid conflicts with each other, anyone else seeking to use Rooney's image will find itself closely scrutinised by both his representatives and his official sponsors, who will all want to ensure that there is no brand dilution occurring in the public mind and that no-one else gets a free ride on the back of rights that can demand huge sums.
What to do
Merchandisers that want to make sport-themed products will very likely to want to enhance that offering by using imagery associated with the sport in question, and this invariably means using images of the sport's star players.
Such companies can take two routes – either approach a player's representatives or the other entities that will have acquired rights to deal in his image (i.e. the national side, his club), or carefully structure and design their programme such that the player's image is used, but no rights are infringed.
The official route
Taking a licence direct from the star's agency or other authorised body may often be the best option – the scope of rights available will usually be clearly outlined (as the player's representatives will have carefully carved-out distinct bundles of rights enabling them to increase the number of packages available), you will benefit from co-operation from and access to the individual and surely no-one will come after an "official" licensee. Or will they?
When signing a deal with an 'official' partner, be very careful to ensure that they have the rights they purport to be selling – EA Games was forced to withdraw its FIFA 2002 World Cup game, and pay compensation, after German goalkeeper Oliver Kahn protested that he had not granted the relevant rights to the European football players' federation (FIFPro) which licensed EA.
Also worth considering is a good behaviour clause – a player may seem an attractive prospect now, but how will you feel if you are locked into a long-term deal with a player whose star has fallen and may even be in prison? It is reported that Nike relied on just such a clause to drop Newcastle United's Joey Barton from its programme recently.
The unofficial route
'Unofficial' doesn't necessarily mean 'bad'. Images of sports stars can be acquired from any commercial image agency and your legitimately-obtained copyright in the image can be incorporated into your products. What will upset the player and his panoply of 'official' partners is any suggestion that he is endorsing the product – this is what they pay, and are paid, handsomely for.
In 2002 Topps famously pursued Panini for producing a sticker collection which, it alleged, infringed the official rights that Topps had acquired from the Premier League because pictures of the players featured the Premier League logo on its team kits. You can help avoid this sort of uncomfortable experience by using images with generic kits, and further avoid any suggestion of official endorsement by ensuring that any series of products features a range of different players, and any one-off products feature a number of players, none more prominently than the rest.
The point to take away? Players' image rights are now guarded with an unprecedented degree of aggression and paranoia. The area is also complex – in the UK there is no such definitive thing as an 'image right', but a collection of rights based on trade marks, copyright and contractual obligations (contrast this to the US and continental Europe where there are codified and identifiable personality rights).
So, when considering using this year's hot property, make sure you get proper advice to ensure your fingers don't get burned.
Stuart is an associate in the Media, Communications and Technology Group of Olswang, a leading business law firm. He regularly advises on the acquisition and licensing of sports media and marketing rights and prior to joining Olswang he was director of legal affairs at an international brand licensing agency. He can be contacted by clicking here or by calling +44 (0) 20 7067 3000.
This article does not represent legal advice that should be relied upon, or for which responsibility is accepted by the author, his firm or Licensing.biz.