Ah, [Fantasy] Football Season. Everyone is glued to a television screen (or three). Everyone is an NFL franchise owner. Everyone has proverbial skin in, well, every game. Today’s post is dedicated to you, fantasy football fan.
Congratulations! You are an
NFL NFFL (that’s National Fantasy Football League) franchise owner. Last year your team (Fifty Shades of Red) won it all, and you’re confident that the team could go all the way again this season. You are so confident, you’ve begun printing t-shirts that display the team’s logo — a red-haired player preparing to throw a touchdown pass — with 2016 NFFL SUPERBOWL CHAMPS printed across the top. As a tribute to your team, a local high school football program has asked to use exact replicas of the Fifty Shades uniforms, down to the helmets, jerseys, logos, and colors, for their current season only. Your favorite burger restaurant in town has asked your permission to create a television commercial showing a Fifty Shades of Red highlights reel, complete with computer graphics that replace the footballs with big hamburgers. They’ve asked that you share this “Ballers with Burgers” restaurant commercial via the Fifty Shades social media accounts which, they’re hoping, would cause the video go viral. A little extra publicity for the team could mean a lot more folks in the stands. What could go wrong?
Well, let me tell you. You might encounter some problems with this game plan (pun intended).
Who owns that SUPERBOWL logo you’re wanting to put on your CHAMPS t-shirts. The league? Yep. It’s not a good idea to use a trademark to which you have no rights without the owner’s permission. Plus, you’ve heard the league is super, super, super serious about its trademark rights to SUPERBOWL. Best to get a license, or stop printing those t-shirts.
Do you need to have an agreement in writing with the high school regarding their use of your team’s name and logo and uniform? Well, you might not need one, but it’s generally a good practice to have a trademark license in writing. Plus, you want to control the goods and services on which this high school will be using your trademarks and trade dress.
That television commercial…yikes. First of all, who owns the footage of those games you’d include in the highlight reel? Most likely the league. Yes, back before you were a franchise owner and you watched the games on a television screen instead of from your luxury box, you remember reading that disclaimer:
This telecast is copyrighted by the NFFL for the private use of our audience. Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFFL’s consent is prohibited.
But does that mean everyone is prohibited from using footage from any professional football game? The media certainly re-plays game coverage. Fans re-post ESPN clips to Facebook and other social media outlets. How is that possible? Licensing? Fair Use? Does fair use apply if you create a highlight reel for purposes of an advertisement? (Hint: probably not.)
As for the “Ballers with Burgers” social media frenzy, if you don’t have rights to that footage, you probably shouldn’t authorize a television commercial or a video meant to be shared online. You don’t want to “pull an SB Nation” and have your Twitter account suspended for something like this (and SB Nation was only sharing GIFs of football players, not video).
And hold on, if you do move forward with that highlight reel, do you think you might need to get permission from the players to use their names, images, and likenesses in connection with the sponsorship of a restaurant? Right of publicity laws require permission to use another’s name, image, or likeness in connection with a commercial purpose. (If this were college ball, you would have fewer right-of-publicity woes.) Would images of the players catching and throwing giant hamburgers be tantamount to endorsement? You certainly don’t want a lawsuit brought against you by your own players. Talk about bad publicity.
Whew. A lot goes into being an National Fantasy Football League franchise owner. Best of luck to you. Let me know if you need some help.