Image Rights – explained (Sport)
So Manchester United finally got their man. Jose Mourinho becomes the clubs third manager since Alex Ferguson left at the end of 2013 season. Discussions to bring Mourinho to United took over three days, with his agent, Jorge Mendes, and United officials thrashing out a deal. So what was the hold up? The delay in negotiations was not over money or contract. It was image rights.
Image rights – explained
‘Image rights are the expression of a personality in the public domain. The provision of image rights in law enables the definition, value, commercial exploitation and protection of image rights associated with a person.’ These form of rights are of particular interest to sporting stars and major show business names (dead or alive).
‘The right of publicity, often called image rights or personality rights, is the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity. It is generally considered a property right as opposed to a personal right, and as such, the validity of the right of publicity can survive the death of the individual (to varying degrees depending on the jurisdiction).
Personality rights are generally considered to consist of two types of rights: the right of publicity, or to keep one’s image and likeness from being commercially exploited without permission or contractual compensation, which is similar to the use of a trademark; and the right to privacy, or the right to be left alone and not have one’s personality represented publicly without permission. In common law jurisdictions, publicity rights fall into the realm of the tort of passing off. United States jurisprudence has substantially extended this right.’ The laws are similar in different countries but vary in detail.
If you are a household name, such as soccer player David Beckham, your image and name have a value similar to that of a brand name like Coca-Cola or Nike. But it is the image, personality not the individual name which cannot be copyrighted as found out by a ’Mr BlackAdder’.
It has emerged that Chelsea still own Mourinho’s name as a trademark and could demand a six-figure sum from United before any deal was concluded. Chelsea registered ‘Jose Mourinho’ and his signature as a European trademark in 2005, which means they can use it to sell merchandise such as toiletries, technology, clothing and jewellery. Sports lawyer Carol Couse told BBC Sport it was “really unusual” for an individual not to own the trademark to their own name. “If United had a brand of Mourinho clothing, it would be in breach of the trademark Chelsea currently own,” said Couse, of law firm Mills & Reeve.
How might the club get round this legally ?
Mourinho cannot override the trademark, so the options are:
United do not use Mourinho’s name against the exhaustive list of items that Chelsea have registered – from umbrellas to watch straps, lingerie and talcum powders.
United pay Chelsea for a licence so they can use Mourinho’s name on club merchandise
United ask Mourinho to buy the trademark back
United challenge the trademark if they think they can prove it has not been used by Chelsea
Couse pointed out that Mourinho has managed Inter Milan and Real Madrid since the trademark was registered, suggesting the Italian and Spanish clubs both found a way around the sticky issue. “They have either acquired the rights from Chelsea or managed the use of his name,” Carol Couse said. As for a licence, Couse estimated that it could cost United “hundreds of thousands of pounds” but said it might be worth the investment. “If Chelsea didn’t grant a licence, every time United used Jose Mourinho’s name in a commercial capacity against those products, Chelsea could sue Manchester United,” she said. “I would suspect United would rather just pay a licence fee.”
We have often heard the phrase ‘brand Beckham’ well a name like David Beckham will be of major interest to advertisers to help endorse and promote Brands across the world. Beckham’s shirt number and face will help sell products internationally and make huge amounts for his past football clubs and potential endorsements for those companies that wish to buy into ‘brand Beckham’.
In most major footballer’s contract there is an image right clause. The amount can be further beneficial to the player as the fees obtained through image rights can be placed in a company rather than have to pay conventional PAYE tax which they would do on their football salary. The question has been for some player’s agents in negotiations, how much represents image rights and how much for actually being a footballer? In February 2002 David Beckham was in negotiations with Manchester United. Those talks went on and Beckham commented at the time “It’s not the salary that’s a problem, it’s just the image rights that needed a little perking.” Beckham did not give United exclusive rights to his image, only the right to use it in joint commercial deals with the club – for example, a Manchester United video with Beckham’s face on the cover.
According to experts who have studied data at the London School of Marketing. The Beckham marketing power resides in the family’s three main corporate vehicles: Footworks, where David’s football related revenues are collated, the Beckham label, for all their endorsements, and Beckham Venture, for Victoria’s fashion business. At the end of 2015 they worked out current estimates put the value for Footworks at £150 million, the Beckham name at £70 million and Beckham Ventures at £60 million. This, combined with their non-business assets of an estimated £190 million, puts the family name at a total value of £470 million.
Speaking about the findings, Chief Marketing Officer at the London School of Marketing, Anton Dominique, commented: ‘The Beckham brand has been used to advertise everything from designer clothes, to satellite television and even whisky. Whilst Victoria keeps busy with her booming fashion brand, David and Simon Fuller partnered with beverage giant Diageo to launch whiskey brand, Haig Club, he recently celebrated ten years of fragrances, has his own range with H&M and models for Belstaff.
Sports agent Dave Williams, who represents England rugby stars Matt Dawson, Dan Luger and Ben Cohen, explains. “Sport is part of the entertainment industry,” he says. “It’s about recognition. In the film world, Brad Pitt’s salary will incorporate an element for his acting and an image rights portion – the right to use his face on promotional posters and in merchandising spin-offs’. It’s the same for nearly all valued film stars, the fictional characters they portray there is an image rights clause in agreements providing them royalties on merchandising.
In 2006 Muhammad Ali was reported to have sold the rights to his name and likeness to the company that owns the Pop Idol franchise. This may underline the current financial need of the former three heavyweight champion of the world and a sadness that the 20th century most loved and respected sports star should have to consider these measures. The retired heavyweight fighter originally known as Cassius Clay will receive $50m (£28m) from the New York firm CKX, in return for an 80% stake in his licensing company, Goat – an acronym derived from his self-chosen soubriquet, the Greatest Of All Time. He and his fourth wife, Lonnie Ali, will retain control of the remaining 20%.
Ali, then 64, who suffered from pugilistic Parkinson’s syndrome, said at the time the deal would “help guarantee that, for generations to come, people of all nations will understand my beliefs and my purpose”.
But according to the Guardian profiting from his name without offending his admirers could prove a challenge for CKX, which has made most of its money from Pop Idol, American Idol and the rights to Elvis Presley’s image, for which it paid $100m to Lisa Marie Presley in 2004.
Out of respect to Ali’s Muslim faith, CKX chairman Bob Sillerman said, his name would not be used to endorse alcohol or gambling. Rampant commercialisation was “not what Muhammad Ali is about”, he told the LA Times. “Could we sell a coffee cup with a picture of Ali on it? Sure. Is it likely? Not at all.”
‘The Guardian’ Muhammad Ali April 2006
BBC Sport’ Beckham Image rights 8 February, 2002
‘The Daily Mail’ Brand Beckham 28 September 2015
‘BBC Sport’ – 25 May 2016
Matthew Willetts MA is the Director of Comicus who has over 35 years experience in television, film, theatre, and comedy club/cabaret entertainment, working as a performer, screenwriter, producer and agent. He lectured at Southampton Solent University in Comedy, Screenwriting, Television, Theatre & Radio. Matthew can sometimes be seen and heard on TV & Radio and often quoted in the national press and media publications. As well as speaking regularly at festivals and industry conferences, he has been a judge at the Edinburgh Fringe Festival and the Montreux Television Festival.