Say you’re a footballer and a new bit of content created by the latest AI engine is creating a social media sensation. The guy scoring a goal in the clip is you! Hey, nobody ever asked you for the rights to use your image. Time to hold the AI cowboys to account, right? Only you have a problem when it comes to establishing that your image rights are infringed. As an athlete you might not have any recognised image right at all .
We’re talking about the UK here. Many other jurisdictions, including most EU countries, have at least some right protecting commercial use of an individual’s (athlete or not) image, and France and Germany have strong image rights. Over 30 states in the USA also have some form of image or publicity rights as well.
But this is the UK and the fact that a black hole like the one in our example exists somewhere highlights a reality of the law as it relates to sports. In the UK monetising the potential value of an athlete’s image relies on an old and complex system of case law. iSportConnect’s Jay Stuart spoke with Stephen Townley, Chairman of Disarm Ltd. who says that “Sports rights are odd creatures.”
And those creatures might not be entirely fit for purpose in a fast-evolving technology-driven market.
Townley, a doyen of sports law who has advised some of the biggest rights owners in the world over a 40-year span, says: “We are at an important juncture. As sports content has become blended into entertainment over the years there has probably been insufficient attention paid to some fundamental issues. To remain competitive sports will need to identify what underpins their value chain. Increasingly, there is cross-dependence between sports and entertainment in any content offering and a blurring of the edges between them.”
He points out that the value of brands in sport and entertainment now depends almost entirely ¬ about 90% ¬ on Intangible Assets. These Intangible Assets (IA) can have a proprietary and protectable basis as Intellectual Property, but not always.
“Growth in the value of IA is already increasing their attraction for theft, and the grey and sophisticated technique of brand mimicry. What is meant by piracy is extending and might, for example, encompass lookalike websites, e-commerce sites, cybersquatting, cybercrime, phishing, malicious attacks and fakes, as well as more conventional pirated merchandise.”
Piracy of sport content has become a global business worth many billions of dollars and is predicted to increase. Traditional legal remedies may not be effective where phoenix companies engage in these activities in jurisdictions where enforcement may prove difficult. Further, any lack of legal certainty around ownership will impact values.
“One of the major risks these days is avoiding and resolving conflicts and disputes,” Townley says. “This can be hugely expensive and a significant business disruptor of itself in terms of impacting the bottom line of a business.”
He has been researching how IA value from a sports business perspective is created, protected, managed, and monetised alongside risks. He is planning to share some of his findings and expert commentary with the iSportconnect community in coming months.
