Connect with us
< All Topics
Print

Image Rights

Image Rights – name, image, and likeness (NIL) rights broadly refer to an individual’s persona protection under intellectual property laws, especially in the context of (academic) sports, which allows individuals to manage how their names and images are used for commercial reasons. Courts have long wrestled with two key aspects of this right: defining “commercial use” of a name or likeness and identifying which features of a person’s “likeness” are safeguarded from unauthorized use. Lacking a solid theoretical basis for the right of publicity, the interpretations of these concepts have expanded significantly. Now, almost any mention of a person that financially benefits another can be considered an infringement of the right of publicity.[1]

These protections are not just limited to famous athletes or celebrities but apply to all individuals. The commercial value of NIL rights has become especially prominent with the rise of digital media, where the unauthorized use of an individual’s identity can have widespread implications. NIL rights protect from unauthorized commercial use of their identity, particularly in the digital age where such issues are increasingly prevalent.[2]

Image rights, also known as rights of publicity, refer to the legal rights individuals have over the commercial use of their identity, including their name, image, likeness, and other distinguishable attributes. These rights are designed to prevent unauthorized persons from exploiting or using an individual’s persona for commercial gain without consent. Such protections are crucial in safeguarding individuals against unauthorized commercial use of their identity, which could include anything from printed advertisements to digital media use.[3]

Furthermore, recent developments in laws NIL rights, especially concerning college athletes in the U.S., have expanded the scope of how image rights can be commercialized and managed. These laws allow athletes to profit from their personal brand while still in school, which marks a significant shift in how image rights are viewed in the context of amateur sports.[4]

These rights are complex and can vary widely depending on local laws and the specific circumstances of each case.

Advertisement

Image rights in esports:

Likeness as an intangible good is a common subject of contracts in sports, as well as esports, in their commercial exploitation. The essence of personal branding for athletes are rights to their image in the traditional sense (i.e., name and face). Unlike sportspersons, esports players can be identified using a gamer-tag or a pseudonym. Additionally, esports players can exploit their image within the scope of influencer activities, as mentioned above. For example, player and esports influencer Tyler ‘Ninja’ Blevins licensed his gamer-tag and logo to Red Bull, to create official apparel available in the American chain of Walmart stores.[5] He also entered into an agreement with Adidas, under which his likeness and pseudonym were used on clothing, including a dedicated line of footwear.[6]

Moreover, some well-known players have collaborated with game publishers to license and sell digital goods featuring the likeness of a given streamer, such as character ‘skins.’ For example, the creators of the game PlayerUnknown’s Battlegrounds partnered with several leading streamers from Twitch to allow them to create their own ‘skin’ that players could purchase and use in the game.[7]

An increasingly common practice that enhances the personal brand value of esports players is the registration of their pseudonym as a trademark, which also affects their negotiating position with counterparties. This happens because the player then becomes the only person authorized to use the name for a given category of goods or services.[8]  For example, player Johnathan ‘Fatal1ty’ Wendel secured protection for his gamer-tag ‘FATAL1TY’.[9]  Tyler ‘Ninja’ Blevins has applied for trademark protection in multiple classes for both his gamer tag and his unique ‘Ninja’ logo.[10] Turner ‘TFUE’ Tenney also decided to register his pseudonym ‘TFUE’ for clothing and entertainment services.[11] Timothy ‘TimTheTatman’ Betar, on the other hand, has applied for protection of his pseudonym in several categories including books and entertainment services”.[12]

It is important to remember that a significant portion of esports players start their careers when they are minors, and depending on the legal jurisdiction, the consent of legal guardians or a court may be necessary for the use of their likeness.

Advertisement

[1] In the cases of Newton v. Thomason, 22 F.3d 1455, 1460 & n.4 (9th Cir. 2005) and White v. Samsung Elec. Am., Inc., 971 F.2d 1395, 1397 (9th Cir. 1992), the right of publicity is defined as the unauthorized use of a plaintiff’s name or likeness to the defendant’s advantage, whether commercially or otherwise. This definition references an earlier case, Eastwood v. Superior Court, 198 Cal. Rptr. 342 (Ct. App. 1983), highlighting the broad application of this right, extending beyond purely commercial uses.

[2] Ibid., D. Whateley and A. Rodriguez, ‘How NIL deals and brand sponsorships are helping college athletes make money’ <https://www.businessinsider.com/how-college-athletes-are-getting-paid-from-nil-endorsement-deals?IR=T> accessed 28.04.2024.

[3] M. Roesler and G. Hutchinson, ‘What’s in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law’ <https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law/> accessed 28.04.2024.

[4] Justia, ‘College Athlete Name, Image, and Likeness Rights Under the Law ‘ <https://www.justia.com/sports-law/name-image-and-likeness-rights-for-college-athletes/> accessed 28.04.2024.

[5] M Pardue, ‘Ninja’s Official Gameplay Headband Now Available for Purchase’ (Redbull, 30/04/2019) < https://www.redbull.com/us-en/ninja-headband-now-available> accessed 28.04.2024.

Advertisement

[6] J. Peters, ‘Ninja’s first Adidas sneaker will be out on December 31st’ (The Verge, 18/12/2019) <https://www.theverge.com/2019/12/18/21027077/ninja-adidas-sneakers-first-shoe-time-in-nite-jogger-mixer-twitch> accessed 28.04.2024.

[7] S. Fogel, ‘Over 200 Custom Twitch Streamer Skins Coming To ‘PUBG’ <https://variety.com/2018/gaming/news/twitch-pubg-custom-skins-1202942291/> accessed 28.04.2024.

[8] M. J. Jacobson, ‘The Essential Guide to the Business & Law of Esports & Professional Video Gaming’ (1st Edition, CRC Press 2021) p. 69.

[9] <https://trademarks.justia.com/851/92/fatal1ty-85192851.html> accessed 28.04.2024.

 Additionally, player Matthew ‘Nadeshot’ Haag has protected his gamer-tag ‘NADESHOT’ in various classes, including for ‘dietary supplements and nutritional supplements’; for ‘video game controllers’; and for ‘live performances by esports players and competitive gamers’: https://trademarks.justia.com/877/51/nadeshot-87751597.html accessed 28.04.2024. Another gaming influencer, 100 Thieves content creator Jack ‘CourageJD’ Dunlop, received protection for his gamer tag in relation to entertainment services.: <https://trademarks.justia.com/881/35/couragejd-88135964.html> accessed 28.04.2024. Furthermore, Benjamin ‘DrLupo’ Lupo, a Fortnite streamer, received trademark protection for his gamer-tag ‘DRLUPO’ in various classes, as well as for his unique ‘D’ logo: <https://trademarks.justia.com/883/08/drlupo-88308068.html> accessed 28.04.2024.

Advertisement

[10] <https://trademarks.justia.com/owners/ninja-holdings-llc-3940941/> accessed 28.04.2024.

[11] <https://trademarks.justia.com/882/94/tfue-88294707.html> accessed 28.04.2024.

[12] <https://trademarks.justia.com/888/91/timthetatman-88891655.html> accessed 28.04.2024.

Author

  • Jacek Markowski

    Dr Jacek Markowski, PhD (doctoral dissertation entitled “Video Game Creators’ Moral Rights “) is an academic lecturer and a member of the Pomeranian Bar Association in Gdańsk, graduate of the Faculty of Law and Administration at the University of Warsaw. View all posts

Table of Contents