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Athlete image rights: Profiting from bobbleheads to player trading cards

dodger-bobble-head
(Credit: Cliff Gagliardo, cliffgphoto.com)

Unlike a sports bar, in this minimalist, buzzing coffee shop, the bobblehead may seem a bit out of its element, but as co-owner Charles Babinski confessed, “90 percent of conversations [in here] are centered around sports.”

Standing shoulder to shoulder among locals at the counter of one of Los Angeles’ newer, hip specialty coffee shops, Go Get Em Tiger, one small decorate detail stands out. Among Go Get Em Tiger’s functional design of makeshift tables, stools and daytime bar stands a bobblehead of Clippers point guard Chris Paul and a bobblehead of former Dodger Hideo Nomo.

Angelenos want a place to talk Lakers, Dodgers, Clippers, Kings — these teams matter significantly to people. The emotions, debates, and political conversations, which emerge from a shared talk about a game score, quickly connect to real issues far beyond the game.

This begs the question: What social and economic values are involved in the easily recognizable, commonplace promotional goods, like the infamous bobblehead?

Pushing this conversation a bit further than a mere observation of shelf décor, I want to suggest that the bobblehead is an instructive tool for rethinking the sources of value creation and profit in sport and athlete image rights.

Because the journey of a bobblehead begins with commercial stakeholders, not social, a host of important financial, labor and legal interests become intertwined in it.

Sponsors typically offer the bobblehead as game souvenirs on special promotional nights. Since the 1960’s this enduring and enduringly beloved American sport trinket has offered a hardline good by which sponsors can attach their branding to a team-outfitted player. Since 1999, the bobblehead has emerged predominantly as a non-price sales promotional item – a giveaway with ticketed gate entry that typically ventures home with fans – and even with the opposing teams’ fans, for perhaps, not so endearing fates.

While it’s clear that bobbleheads act as drivers of ticket sales, how are individual and collective publicity rights negotiated in the production of such promotional goods?

Sport revenue sources have shifted significantly from the days in which ticket sales led as sports’ primary profit generating products. Nowadays, the cash crops of sport are broadcast rights and corporate partnerships. Of course, jersey sales matter — every team sells several annual iterations of team replica home, away, vintage, and special edition jerseys. Rookie jersey sales rankings are often the trending subject of sport business news — think headlines and graphics announcing Michael Sam’s St. Louis Rams jerseys versus Johnny Manziel’s Cleveland Browns jersey sales rankings. Yet, smaller promotional goods, like bobbleheads or low-priced trading cards still matter and, in fact, involve a complexity of often conflicting player and sport property owner rights.

In the United States, the case ruling that articulated and enshrined a “right to publicity” appeared in 1953, involving baseball card producing company, Topps. In Haelan Laboratories v. Topps Chewing Gum, Inc., the court supported the image right or right of celebrity status as a personal identity right of athletes. While the court declared that an athlete holds a right to commercialize upon his or her fame, the circumstance and extent of this right to publicity continues to be the source of debate.

Since 1960 when Topps negotiated its first Major League Baseball exclusive partnership, producers of sport trading cards have learned to better navigate the system of image and publicity rights by working to establish sport property owner agreements, usually on an exclusive basis.

The legal landscape protecting rights of publicity varies radically by state and nation, and so we witness the redoubling of player contract clauses pronouncing the terms of times and forms by which players may independently exploit their fame and celebrity status and the times and form by which a sport franchise or governing body may steer course.

In professional sport leagues, collective bargaining agreements typically involve group licensing provisions. For example, in MLB, anytime three or more players are featured on a product or product line, the publicity rights involve a negotiated contract in which the union receives a cut of the proceeds. If fewer than three players are involved in a product feature, then the publicity rights are matters in which the individual player can act on his own behalf.

By and large, the bobblehead is a collective, team-centered rights product. Bobbleheads are promotional chips by which teams negotiate sponsor contracts; players are involved only in terms of consent through the MLB Player’s Association, not individual profit sharing.

Similar to MLB, it is at the league level that the publicity rights for promotional material involving team roster images product features lies. For world soccer and NBA, the primary exclusive trading card company is Panini SpA. For a price tag of $1 million, Panini negotiated exclusive rights to FIFA events (2009-2016) including the World Cup. Additionally, Panini pays rights and licensing fees to the soccer associations.

Pete Martin 12elfth Man
(Credit: Pete Martin, 12elfth Man)

While bobbleheads and trading cards may be more or less sorted out in recognized rights holder relations, there is a need to better distinguish the turf of publicity rights.

These are matters of significant commercial value. As the revenue generating products of the sport-entertainment industries increasingly go digital, the lines of rights holders blur.

With the growing popularity and profitability of fantasy leagues, gaming industries, and the production of game console systems and products like those created by EA Sports, courts are increasingly being called upon to determine the standing of how individual players and sport collectives – teams, leagues, and governing bodies – can assert rights to player images, names, nicknames, voices, and likeness.

(Ed Mulholland-USA TODAY Sports)
(Ed Mulholland-USA TODAY Sports)

Should professional players and college players have the same rights, protections, and expectations for publicity rights protections? Currently, the NCAA, whose licensing contracts are worth more than $4 billion, is facing a class action lawsuit O’Bannon v. NCAA for exploiting player publicity rights to their names and image likeness (Related: NCAA asks that O’Bannon trial be moved to February 2015).

As digital platforms create and extend new opportunities for sport production, sport stakeholders are newly looking to assess what sort of mileage intellectual property rights, such as publicity rights, can yield.

As courts and player associations attempt to better draw or negotiate the lines of publicity rights, at the street level, bobbleheads and trading cards continue to arouse longing and nostalgia. Although mediation is often required here too. In the countdown to the World Cup, schools in the UK have banned Panini trading in the classroom — too disruptive. In Los Angeles, in the heat of the Donald Sterling scandal, Go Get Em Tiger opted to ring in the baseball season and take the basketball bobbleheads off the shelf — as basketball emotions proved too volatile for the safe shelf life of some of the bobblehead fellows.

***

Rook Campbell is a Visiting Professor of Communication and Political Science at the University of Southern California. Follow her on Twitter: @cabinet48

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