Sports Merchandising, Publicity Rights, and the Missing Role of the Sports Fan

IntroductionSports fans play a tremendously important role in the success and popularity of sports teams and the enterprise of sports in general. Indeed, if the teams and sports journalists are to be believed, the fans are what it is all about. When a local team wins a championship, the owners and players first thank the fans.1 Team owners and players all say that the fans motivate them to succeed.2 And it is hard to deny that fans are critical to the team's economic success when they are the ones buying tickets to games, watching games on television, and spending money on merchandise.3 More than that, fans are unbelievably passionate about their teams, arguing constantly over tactics and desperately following the ups and downs of their teams.4Given the crucial role played by fans, it is somewhat curious that fan interests are almost entirely missing from discussions about certain important legal issues that have a direct impact on fans. Specifically, fan interests play a surprisingly limited role in discussions about sports team merchandising and player rights of publicity.5 Over the years, sports teams and leagues have become increasingly aggressive in their licensing of team trademarks and players' rights of publicity.6 Teams and leagues now derive substantial revenues from merchandising and other licensing rights.7This Article argues that modern sports licensing practices are coming into increasing conflict with the interests of sports fans, and that the law should take such interests more into account. Part I discusses the increasing economic value of sports licensing and analyzes a number of recent disputes over intellectual property and licensing.8 Part II discusses the relatively weak legal foundation upon which modern licensing practices are based.9 Part III then draws on the expanding literature on fan interests in the field of copyright to show how the foundation is even weaker in the context of sports.10 Part IV concludes by arguing that this analysis suggests a far more limited recognition of the intellectual property rights of sports franchises, leagues, and players.11I. The Increasing Economic Value of Sports LicensingSports licensing is big business. This Part begins by examining the growing economic impact of sports licensing on professional and collegiate athletics.12 It then explores a number of recent disputes over intellectual property rights in which teams have asserted claims that have gone beyond traditional merchandising and trademark claims.13 In particular, this Part takes a close look at a number of recent disputes that have arisen in the context of fantasy sports and video games.14A. Big MoneyProfessional sports leagues and franchises derive an increasingly large share of their revenues and profits from the licensing of trademarks, trade dress, and rights of publicity.15 Leagues and franchises sell all kinds of items-jerseys, caps, key chains, coffee mugs, posters, etc.- with their team logos on them, and their fans seem to have a near unlimited desire to buy these items. In 2009, retail sales of licensed sports products from teams, leagues, and personalities amounted to approximately $12.5 billion in the United States and Canada and approximately $17.5 billion worldwide.16These trends have not been confined to professional sports. Indeed, collegiate sports teams and leagues have also begun to more aggressively license their trademarks and rights of publicity.17 Just as with professional sports teams, colleges and universities now place their logos and team colors on a wide range of merchandise for purchase by students and others. Merchandising generated more than $4 billion in revenue for colleges and universities in 2008.18 A successful season can increase the visibility of a team and, at the same time, generate substantial added income from merchandising sales.19As sports franchises and leagues have more aggressively licensed out their trademarks and rights of publicity, they have enforced their rights against companies and individuals who sell such items without permission. …