Athletes’ Right of Publicity in Game Performances and Sports Broadcasting

Barbara Osborne

At the intersection of personal branding and capitalism is the legal concept of a right of publicity. Since the Supreme Court first recognized this right in Zacchini v. Scripps-Howard Broadcasting Company in 1977, it is commonly assumed that individuals have a legal interest in protecting their name, image, and likeness from unauthorized commercial use. However, it is important to note there is no common law or statutory right of publicity on the federal level—this is a matter determined by state law. The common law right of publicity (based on decisions of the various state courts) is rooted in both tort and property law; statutory protection also varies tremendously across states. The legal theory underlying the right of publicity is to “provide incentives to encourage a person’s productive activities and to protect consumers from misleading advertising” (C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 2007, p. 824). A recently decided case, Dryer v. National Football League (2016), addresses right of publicity claims of former professional football players in archival television footage of live game performances. Television and media rights are one of the largest sources of revenue in the sport industry. The Dryer case is important as it provides clarity and instruction for media and sport marketing professionals (as well as athletes) relative to the right of publicity for sports broadcasts and explains the federal laws that preempt those claimed rights.

Open Access