• by Weston Anson , Op-Ed Contributor, March 17, 2015

Rights of Publicity (ROP) are defined as the inherent right of every human being to control the commercial use of his or her identity. And much like typical Hollywood celebrities, athletes can increase their personal brand value by capitalizing on their own celebrity status. 

The trend of corporations looking to celebrity athletes to market their products is nothing new. In 2009, a group of market researchers from the Erasmus School of Economics published an article showing an increase in brain activity when exposed to familiar celebrity faces. With the growing popularity of sports as entertainment, even athletes with average on-field performance may be more recognizable than other celebrities. However, even after the fact, a concrete determination of worth created through endorsement-based marketing is almost impossible. In other words, relying solely on observed market transactions may not provide a reasonable indication of value for an athlete analyzing endorsement opportunities. 

Two well-known situations illustrate distinctly different sets of conditions under which analysis of an athlete’s ROP played a central role. 

Most everyone is familiar with the many endorsement deals golfer Tiger Woods signed before his infamous divorce. Each corporation believed that the present value of future benefits, driven by their association with Tiger, would be greater than the amount they invested in Tiger. As mentioned, it can be difficult to connect the sale of products or services to an endorsement-based marketing effort. After the news of Tiger’s infidelity broke, some corporations dropped their Tiger-based marketing efforts, while others continued to use Tiger’s ROP. Notably, the professional services and consulting firm Accenture dropped Tiger but Nike Golf kept him. While Tiger’s level of fame and exposure certainly increased, the value of his ROP changed. Further, it changed differently for different users. As a golfer, Tiger’s connection to professional services was less strong than his connection to golfing equipment and attire. The value of Tiger’s ROP changed more drastically for the corporation with a lesser degree of connection between its future earnings and Tiger’s ROP. 

A second and very different situation, in which I took part, involved the landmark decision in favor of Jesse “The Body” Ventura, who sued Titan Sports/World Wrestling Federation (WWF) to recoup unpaid royalties. Whenever his contract was renegotiated, the policy of paying royalties only to “featured” performers was reiterated. Despite this claim, Ventura was able to prove actual royalty payments made were inconsistent with this purported policy. It was discovered that Ventura’s likeness was being used on dozens of products. “The District Court found that, had Ventura known that Titan did not abide by its stated policy, he would not have accepted a deal which did not compensate him for the reproduction and sale of his performances on videotape.” Ventura v. Titan Sports, Inc., 65 F.3d 725, 1995.  

Looking Forward

We believe there will be more emphasis on gaining a greater understanding of the value of ROP, and the factors that drive ROP transactions for athletes. This is evidenced by the recent class action lawsuits against major sports organizations (i.e., NFL, NCAA) for use of former player images without compensation.

Outside the courtroom, corporate marketing departments will increase their analysis of financial returns on their marketing activities, athletes will have shorter careers with greater exposure, and expanding media options will allow living and deceased celebrity athletes to use their ROP across more avenues and for longer periods of time. We are also likely to see a blurring of the difference between trademarks, copyrights and rights of publicity as many individuals employ all forms of protection for their imagery. All of these issues will impact the value of an athlete’s ROP.