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Thursday, December 07, 2006
 
Tom Brady [insert football pun here in place of the word "sues"] Yahoo

First he slammed BCS-championship-game-bound Florida. Now, Tom Brady is suing Yahoo over use of his image without permission, as reported by the Smoking Gun. The core of Brady's lawsuit, according to his complaint:
In September 2006, defendant Yahoo ran a full page color advertisement for its Fantasy Football goods and services in Sports Illustrated featuring Tom Brady's likeness, image and identity without permission or authority. . . . Defendant's unauthorized use of Tom Brady's image, likeness and identity are false and misleading and tend to falsely describe and represent that Defendant's goods and services are licensed, sponsored, endorsed or otherwise authorized by Tom Brady. . . . Defendant's unauthorized use of Tom Brady's likeness, image and identity . . . violate Plaintiff's . . . rights of publicity.
Fantasy sports providers recently earned a victory in the CBC case, as Rick noted here. However, that case involved the use of just names and statistics; here, the use of Brady's image gives the athlete a much better claim. In CBC, the court specifically emphasized that the fantasy provider was not using player images, just their names and statistics. Here, if Brady's allegations are true (i.e., Yahoo did not have a license to use his image), it would seem a fairly open and shut case. Another blunder by already struggling Yahoo?





5 Comments:

According to rotoworld.com, Yahoo!has a fantasy football license from the NFLPA and the NFLPA holds licensing rights wherever six or more players are used. If this were true, I would think Orrick would have considered that.

Anonymous Anonymous -- 12/07/2006 4:33 PM  


Here's the full Roto post:

Tom Brady has filed a lawsuit against Yahoo for their use of his image and likeness in fantasy football advertisements both in print and online.

In late summer, Yahoo ran a fantasy football print ad in Sports Illustrated with the images of Randy Moss, LaDainian Tomlinson, Jeremy Shockey, Steve Smith, Larry Johnson and Tom Brady. Since Yahoo has a fantasy football license from the NFLPA and the NFLPA holds licensing rights wherever six or more players are used, we aren't sure how Brady has much of a case.


Roto hasn't explained where they get the idea that Yahoo has a license from the NFLPA. If you look at the NFLPA's list of licensees, available at http://www.nflplayers.com/fantasy/main.aspx, Yahoo isn't on it. Since roto hasn't cited its source, I can't verify the claim.

Blogger Geoffrey Rapp -- 12/07/2006 5:05 PM  


I think roto's point is still valid whether or not Yahoo has a license. If the NFLPA holds licensing rights wherever six or more players are used, then Brady does not have a claim not matter what. If Yahoo in fact does not have a license, the NFLPA would have the claim rather than Tom Brady.

Anonymous Martin -- 12/07/2006 5:16 PM  


Subject to the caveat that NFL licensing is not my area of expertise...

...The NFLPA acquires publicity rights when a player, in the standard contract, signs them over to the NFLPA. The clause in the standard contract making that assignment can be deleted at the player's request. Typically, marquee players are the ones who delete that clause, since they are the ones who can earn more on their own than as part of a group; Brady would certainly qualify and I would be extremely surprised if he agreed to any such assignment.

Even where a player has signed over publicity rights to the union, as I read the language of the standard player contract, that only applies in "group licensing" activities. Since I believe Yahoo isn't a licensee, the assignment would not apply in Yahoo's case.

Here's the contract provision I'm referring to (Section 4b of the Standard Player Contract):

Player hereby assigns to the NFLPA and its licensing affiliates, if any, the exclusive right to use and to grant to persons, firms, or corporations (collectively "licensees") the right to use his name, signature facsimile, voice, picture, photograph, likeness, and/or biographical information (collectively "image") in group licensing programs. Group licensing programs are defined as those licensing programs in which a licensee utilizes a total of six (6) or more NFL player images on or in conjunction with products (including, but not limited to, trading cards, clothing, videogames, computer games, collectibles, internet sites, fantasy games, etc.) that are sold at retail or used as promotional or premium items. Player retains the right to grant permission to a licensee to utilize his image if that licensee is not concurrently utilizing the images of five (5) or more other NFL players on products that are sold at retail or are used as promotional or premium items. If Player's inclusion in a particular NFLPA program is precluded by an individual exclusive endorsement agreement, and Player provides the NFLPA with timely written notice of that preclusion, the NFLPA will exclude Player from that particular program. In consideration for this assignment of rights, the NFLPA will use the revenues it receives from group licensing programs to support the objectives as set forth in the Bylaws of the NFLPA. The NFLPA will use its best efforts to promote the use of NFL player images in group licensing programs, to provide group licensing opportunities to all NFL players, and to ensure that no entity utilizes the group licensing rights granted to the NFLPA without first obtaining a license from the NFLPA. This paragraph shall be construed under New York law without reference to conflicts of law principles. The assignment in this paragraph shall expire on December 31 of the later of (a) the third year following the execution of this contract, or (b) the year in which this contract expires. Neither Club nor the League is a party to the terms of this paragraph, which is included herein solely for the administrative convenience and benefit of Player and the NFLPA. The terms of this subparagraph apply unless, at the time of execution of this contract, Player indicates by striking out this subparagraph (b) and marking his initials adjacent to the stricken language his intention to not participate in the NFLPA Group Licensing Program.

Blogger Geoffrey Rapp -- 12/07/2006 8:23 PM  


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