Sports & Entertainment Beat

Stephen G. Rickershauser, a law student at Brooklyn Law School, is GSB's spring 2016 legal extern working out of its New York office.

What rights based in copyright law does a tattoo artist have in a tattoo itself, and to what extent can an artist use those rights to restrict the rights of others, including the people whose skin has been inked?

In February, Solid Oak Sketches LLC, a company holding the copyrights to eight NBA players’ tattoos, sued the videogame makers of NBA 2K16 in the United States District Court for the Southern District of New York.   The Complaint alleged that the videogame makers, Take Two Interactive Software Inc., infringed on the company’s right to license its copyrights in the tattoo designs when the videogame maker depicted the tattoos in its recent game without the company’s permission.[1]

Some sports equipment inventions can have a huge impact on safety. In one example, an inventor found a way to improve safety for a skateboard, and, with this new design, the inventor founded a growing and thriving business. Fortunately, he was wise enough to protect the design through timely filing of a patent application

Benjamin Riesenberg is a former Garvey Schubert Barer legal extern who worked out of the firm’s New York office. He was a law student at Brooklyn Law School.

As the popularity of fantasy sports grows, so do the legal issues surrounding the industry.  The main legal challenges facing fantasy sports have been centered on the issue of whether pay-to-play fantasy sports contests constitute illegal gambling.  In 2006, Congress passed The Unlawful Internet Gambling Enforcement Act (“UIGEA”), which created certain guidelines for fantasy sports.  For a pay-to-play fantasy sports contest to be legal under the UIGEA, the fantasy sports game must have a result that is predominantly based on the knowledge of participants as opposed to mere chance.

As boyfriends, girlfriends and the curious-the-world-over google “how to get to the dark web” and “Ashley Madison” in order to find the data dump the Impact Group unleashed on the “dark web” late Monday night, we thought it was a good time to remind the teams that service entertainers and athletes what they can do when your client’s private moments find their way to the very public Internet.

Sports gear is constantly being improved. Athletes and others, such as trainers, spend a considerable amount of time with equipment and are often the sources of new ideas and gear. But with the advent of smart phones, casual athletes can envision new services related to sports, and one of these ideas recently resulted in a granted patent.

As anticipated, the Trademark Trial and Appeal Board ("TTAB") decision of June 2014 cancelling six trademark registrations for the Washington Redskins team was appealed by Pro Football, Inc. In August 2014, Pro Football, Inc. filed a lawsuit in federal court against the five Native Americans involved in pursuing the TTAB cancellation in an effort to try to overturn the TTAB's holding that the term “Redskins” is offensive to Native Americans and thus is not eligible for trademark registration under the federal Lanham Act. Section 2(a) of the Lanham Act prohibits protection for terms that “may disparage” or bring people into contempt or disrepute. 15 USC §1052; TMEP §1203. On July 8, 2015, the US District Court for the Eastern District of Virginia ruled against Pro Football, Inc., affirming the TTAB's ruling that the REDSKINS marks do disparage Native Americans and that such a decision is not unconstitutional.

Deflategate has taken its well-deserved place in the annals of all-time sports infamy.  The recent allegations against Tom Brady have not only polarized NFL fans and players alike, but have given legal professionals reason for pause as to the manner in which the investigation was conducted and the burden of proof that was applied.  The mantra repeatedly used in the report filed by league investigator Ted Wells was “more probable than not.”  This burden of proof standard is akin to “by a preponderance of the evidence,” the burden of proof used in civil trials where a plaintiff only needs to convince a jury that his legal argument is more plausible than the defendant’s version, even if the percentage in his favor is only 51%.  Conversely, in criminal trials, the burden of proof that is applied is much more onerous given the higher stakes involved.  A prosecutor is required to prove his case “beyond a reasonable doubt” to merit conviction of the alleged offender.  One could reasonably argue that Ted Wells should’ve applied a raised burden of proof, equivalent to “beyond a reasonable doubt,” to implicate Tom Brady in this scandal, given the severity of the allegations and the erosive impact on the Rushmoreian legacy of arguably the greatest quarterback of his generation, if not in the history of the NFL.

The Department of Justice recently disclosed that the FBI and Justice Department prosecutors are investigating whether the St. Louis Cardinals hacked into the Houston Astros’ computer network to steal information about the Astros’ players.  According to the New York Times, officials believe that “vengeful front-office employees for the Cardinals, hoping to wreak havoc on [former Cardinals executive and current Astros general manager] Jeff Luhnow …” orchestrated the hack.  The breach apparently occurred in 2013.  The sports implications are interesting, but the data privacy implications are crucial.  Specifically, the nearly nonexistent protection that the Astros allegedly afforded its valuable confidential information should give pause to any business that, without intensive verification, believes its information is safe.

Pick Team Members who have Contacts, Industry Knowledge, High Ethical Standards, and Brand-building Acumen.

Just like regular sports teams, some business teams are good and some are bad. Some teams have great players, but the players don’t work well together, because there is no strategy in place, and each player approaches the game from his or her own perspective. As a result, plays can be disjointed, unproductive and do little to advance the cause of winning the game.

The same thing can happen with the business management of an athlete’s or entertainer’s career.  When an athlete or entertainer receives what seem to be contradictory opinions from different professionals on his or her business team or worse, does not receive timely feedback from a team member, he or she can be overwhelmed, and the decision-making process disrupted, or even stalled, resulting in loss of valuable opportunities, time, money - and no one winning the game.

On September 30, 2014, the Federal Communications Commission (FCC) released a statement repealing its sports blackout rule, a rule that the National Football League (NFL) has defended and relied on since 1975. The blackout rule strengthened the NFL’s own blackout policy, which prohibited local broadcast stations from televising a game that did not sell between 85% and 100% of its tickets at least 72 hours before kickoff. Similarly, the FCC rule prohibited cable and satellite operations from airing any game that was blacked out on local broadcast stations. Although the FCC’s rule applied to all sports, the NFL has not only relied upon it the most, but also fought the hardest to preserve the rule.