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The right to use images of athletes for commercial purposes – gold mine or undermined?

Photo source : Cheer on Nigeria

The global obsession with footballers has created one of the great money spinners of the entertainment industry. In return for captivating audiences with their skills on the pitch, international soccer stars are now earning many more millions of dollars off the pitch being on television and other media; associating themselves with products from soft drinks to vehicles and airlines.

A recent deal is set to raise the stakes even higher on home shores. On November 7, 2019 the League Management Company of Nigeria; regulators of the Nigeria Professional Football League (NPFL), announced a multi-million-dollar broadcast deal with communication giants, Next TV worth a whopping US$225, 000, 000 (Two Hundred &Twenty-Five Million United States Dollars).

This lucrative 5-year broadcast deal is certain to bring up issues on the image rights of the NPFL Players as more brands begin to leverage on this broadcast deal. But does this actually mean more income for NPFL athletes as it would with their international counterparts? The answer to this question might surprise you.

In today’s modern sporting world, image rights can hold enormous commercial value to both the professional athlete and his club. Image rights can be defined as the proprietary rights that arise from the commercial exploitation of a sporting personality’s name and image.

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Sports image rights are very valuable assets. The iconic 1970s English soccer player, Kevin Keegan was the first sports personality to enter actively into what was known at the time as a “face contract” for what were essentially his image rights.

What are image rights?

In a football context, image rights are simply the right a player possesses to control, sell, license and otherwise monetize his or her likeness – that is, his or her image, name, nickname, voice, signature and all other characteristics unique to the player.

Image rights are broadly defined, using the expression “image” not in its narrow sense of “likeness” but in its wider sense of “persona” or “brand”, to use a marketing term.

In countries like England, Italy and Spain, where the commercial value of image rights is now recognized, most players often seek to create image rights companies and then assign those rights to these companies.

This is done for tax purposes, as the revenue generated from the exploitation of the player’s image rights will be taxed at corporate tax rates, which are typically substantially lower than personal income tax rates.

Non-UK players who are playing football in the UK will often set up both UK and offshore image rights companies. In these situations, the player’s UK image rights will be assigned to the UK image rights company, and his global image rights will be assigned to the offshore image rights companies.

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Treatment of image rights in Europe and the United States

Image rights are also known by different names and subject to different legal treatment in different jurisdictions. In the United Kingdom, they are known as image rights; in continental Europe, as personality rights; and in the United States as publicity rights.

Nigeria has followed its colonial traditions by adopting the English position. Accordingly, the country’s colonial past has birthed the concept of ‘image rights’ as they are viewed in most common law countries.

The right of publicity purports to protect against uncompensated commercial exploitation of a person (such as an athlete’s) likeness or identity. Every person, celebrity or non-celebrity, has a right of publicity – which in short, is the right to own, protect and commercially exploit one’s identity.

The protection afforded to the right of publicity in the United States stems from, and is intertwined with, the right of privacy.

The term “right of publicity” was coined by Judge Jerome Frank in 1953 in Haelan Laboratories, Inc v Topps Chewing Gum, Inc, which for the first time affirmed that individuals (in this case, Major League Baseball players) possess a property right in their own images. This right in the United States, it must be stated, varies from state to state.

Nevertheless, the right of publicity underpins the protection which inures to a player in respect of uncompensated commercial exploitation of a player’s image. The approach in England and most common law countries including Nigeria is to rely on a framework of statutory and common law intellectual property rights to prevent unauthorized exploitation.

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