Do Student Athletes Have a Right to Their Own Likenesses?
In 1991, Desmond Howard backed up to his own 7 yard line, caught a punt, split two defenders and raced 93 yards down the sideline past Ohio State’s defenders into the end zone, effectively putting the game out of reach. Then, he struck one of the most famous poses in all of college football: the Heisman (which foreshadowed his receipt of the trophy mere weeks later). In this iconic moment, could Howard have known that Brian Maske, a freelance photographer for the Muskegon Chronicle, would snap a picture of Howard in the Heisman pose? Furthermore, could Howard have known he could never use the photo for his own purposes without Maske’s permission?
Two decades later, Howard is facing a lawsuit for copyright infringement by Maske due to Howard’s use of the photo on his own website, www.desmondhoward.com. He certainly could not have foreseen this at the time the picture was snapped. What amounts to a money-grab attempt by Maske (let’s be honest, would he really be suing Howard for using the picture if it weren’t for Howard’s many lucrative years in the NFL or public status on ESPN’s College GameDay?) acts as an small scale depiction of the exploitation of student athletes everywhere by the NCAA, EA Sports, and colleges and universities across the country.
From a legal standpoint, the O’Bannon vs. NCAA case is almost the more simple of the two. The NCAA licensed student-athlete likenesses to EA Sports to use in video games, which EA Sports and the NCAA both have significantly profited from. The student-athletes receive no payment (other than typical athletic scholarships and associated room/board compensation). The simple two part question in the NCAA case is: (a) did the student-athletes consent to the use of their likeness for commercial purposes?; and (b) is the “compensation” paid to student-athletes for their likenesses “fair” relative to the vast amounts made by EA Sports and the NCAA from the video games? The first question is based in law; the second, based in public policy. The more complex issue with the NCAA case appears in the event that the courts rule in favor of O’Bannon and the other plaintiffs. The order allowing players to make money will violate a number of NCAA rules (which will need to be changed), and will pose greater issues when it comes to how much to pay each player (given that only football and basketball tend to be money makers at universities, and even then only fifteen to twenty large universities even make an overall profit through their athletic teams).
The more interesting question (at least, to me) is in the Howard vs. Maske case. Clearly, Howard has a right to his likeness (or publicity). When Maske captured and produced the photo, he did so for journalistic non-commercial purposes (which is covered under the First Amendment to the US Constitution). Such a use of another person’s likeness is considered an “exception” or “defense” to a right of publicity claim. Maske also holds a valid copyright to the photograph. Assuming Howard did not give some passive consent to Maske (by virtue of the fact that Howard was voluntarily playing in a football game where he had to have known his picture would be taken), which property right is controlling? This is a much more interesting question, from a legal standpoint.
The right of publicity (or the right to one’s likeness) is a state law-based property right of a person to control the commercial use of his or her identity. The right is recognized in nearly every state, either in statutory or common law form. Copyright law is a federal law that protects “original works of authorship fixed in any tangible medium of expression.” (17 USCS Sec. 102(a)). The two intersect when the copyrighted work depicts another person’s personal attributes.
In Howard’s case, the copyright holder, Maske, is suing Howard for copyright infringement. Howard is claiming that he can’t possibly be committing copyright infringement when the copyrighted work in question is an image of his likeness and involves his right of publicity. If Maske were exploiting the photo for commercial purposes (other than by suing Howard for Howard’s use of the photo), Howard would have a claim for misappropriation of his right of publicity. Typically, in case law to date on the subject, the plaintiff is the person depicted, and the defendant the person holding a copyright to the photo (or the person licensed by such person to use the photo). Normally, “commercial purposes” would go beyond merely selling or licensing the photo (which would be a valid use). Exploiting a copyrighted photo for commercial purposes really means, according to the courts, using the photo for endorsements or advertisements; in effect, making it appear as though the person pictured in the photo is endorsing a particular product.
In sum, Maske’s copyright claim against Howard (for using the photograph without permission or a license on Howard’s website, which is a use in commerce of the copyright, will likely succeed. Maske has a right to sell and license the photograph which he has a copyright for. Howard’s right of publicity does not hold over Maske’s copyright (except and until Maske uses the copyright to endorse or promote another product). Howard likely won’t like this conclusion, especially since he is the subject of the photo, but it is the likely outcome according to the law.
