Every college and university in the world owns intellectual property. One of the most important aspects of a university’s intellectual property is its trademarks. Consider any “big-time” college athletics universities, such as the University of Alabama, Michigan, or Wisconsin. Each has iconic team colors, mascots, uniforms, fight songs, and logos. These universities carefully cultivate their reputation and branding to distinguish themselves from the competition and create recognition among not only fans, but casual observers. Universities maintain exclusive intellectual property rights to protect these assets, in the form of trademarks and copyrights.
A trademark can be any word, phrase, symbol, design, or combination of these that identifies the nature and source of a good or service. Common examples of university trademarks are their logos, slogans, mascots, and even sometimes the specific shade of color used on jerseys or in their logos. However, copyrights protect original works of authorship fixed in a tangible form of expression. These can be photographs, game films, or recordings of university anthems and fight songs performed by the marching band.
Universities have a strong interest in policing, governing, and protecting their intellectual property. Team names, slogans, and logos often carry a certain reputation or connotation with them that has taken years and substantial funds to establish. Misappropriation and misuse can often have the opposite effect, tarnishing the impression and standing of the university. Intellectual property rights also provide an immense revenue-generating mechanism. Universities can license the ability to use their property, but at a price—typically a very high price. This includes licensing the ability for companies to create apparel and merchandise with the team logo and name or granting broadcast and media rights to produce games for television.
Avoiding Infringement
Unauthorized use of a university’s intellectual property rights can result in significant penalties, including injunction, fines, or criminal charges, depending on the severity of the infringing activities. Therefore, when using an athlete’s name, image, and likeness, it is important to avoid misappropriating these trademarks and copyrights when identifying an athlete.
Critically, an athlete cannot use or license their university’s intellectual property without appropriate permission from the university. Otherwise, their licensable rights are limited to their own name, image, and likeness (i.e., their own right of publicity). Their team’s identifiable intellectual property does not belong to them.
Creating Content with Name, Image, and Likeness
When creating content using an athlete’s name, image or likeness, avoid using any university intellectual property without an appropriate license to do so. It is generally advisable not to use any team or university logos in pictures or descriptions of the athlete. Additionally, the athlete should not engage in sponsored activity in university-provided gear. In other words, the athletes should not appear in a commercial or take a photoshoot in their team jersey or apparel, unless the sponsor has independently secured a license from the university or Collegiate Licensing Company.
Moreover, brands should use a generic font, such as Times New Roman, when specifically referencing a university’s name. University or team names that are written in a particular color, script, bold, italicized, or block font may be protected by trademark law (e.g., the script orange and blue “Gators” or capitalized block “BAMA”). For example, it would be permissible to include an image of the athlete, with the description “Alabama football #12” in a generic, black font.
Any pictures of the athletes should not be in official team uniforms that include protected logos and colors. Instead, utilize a more generic uniform with colors like those of the team. Specific shades or color palettes may be trademarked if they have acquired distinctive meaning. One of the best examples of products that are produced with a player license and no team license are non-Topps baseball cards. Topps has had an exclusive license with Major League Baseball to produce cards with team intellectual property for decades. The Major League Baseball Players Association has a non-exclusive license with Topps and has licensed player likenesses to other companies over time, such as Panini and Upper Deck.
For example, see the baseball cards below, which are produced with a license from the players, but not the teams:
Notice what these three baseball cards have in common. They are all avoiding using team intellectual property while still properly identifying the athlete. While the jerseys look normal at first glance, each card took careful care to remove things that would infringe upon an MLB team’s intellectual property. There are no logos on hats or helmets, and no team names or identifiers on the jerseys. The cards omit team names completely in the description, using only the city name of “New York” in generic font, instead of “New York Yankees.”
These cards are a fantastic example of how to properly utilize an athlete’s name, image, and likeness when creating content or promoting an athlete’s brand. They properly identify and distinguish the athlete in a recognizable form without infringing on any rights a team or university may have and avoiding infringement.
Consider working with experienced counsel in navigating intellectual property challenges related to athlete and university licensing.
