
Background
The mainstream sporting codes are supported by huge fan bases, which allows for the organisers of these sporting events to make use of effective marketing to exploit the various intellectual property rights (IP) created by sports, by way of advertising, merchandising and licensing to create a brand in return for large amounts of remuneration.
What is the role of copyright in sports
What is copyright
In terms of South African law, it is regulated by the Copyright Act 98 of 1978. The main purpose of copyright is to afford the creator during the subsistence of the right to profit from the creation of their work.
The main requirements for copyright to exist in a work is that it needs to be original and must be in a material form. In essence, this means to claim copyright protection the author has to demonstrate that they made use of their own skill and judgment to produce the work.
The sporting industry can be regarded as an image industry which is underpinned by moving images of all the athletes, coaches or referees during competition. Thus, IP in the form of copyright is a very important tool in protecting the broadcasting of these images to the world.
In the European case of Premier League v QC Leisure the European Court of Justice held that sporting events in this case, football matches cannot qualify for copyright protection under any form of European Union laws. The court remarked that sporting events lack the free and creativity aspect that an author would have on any other piece of work. However, the court did highlight the character of sporting matches in that they are very a unique and original, which can then in turn make them become various pieces of works that can be granted IP protection.
Accordingly, if event organisers, clubs or federations undertake to be producers of the audiovisual broadcast of a sporting event, the copyright of this will then vest with them. However, in common practice the undertaking of an audiovisual broadcast will usually be granted to a third-party producer or broadcaster, the copyright can then be licensed back to a club or event organiser on the basis of a commercial agreement between the parties.
TRADEMARKS
What is a Trademark?
A trademark is essentially, a mark which has the sole purpose of distinguishing one product or service from that of another. In South Africa, trademarks are governed by the Trade Marks Act 194 of 1993. Section 2 of the Trade Marks Act provides us with what constitutes a mark being: any sign that is able of being represented graphically and will include a device, name, signature, word, letter, numeral, shape, configuration, pattern, ornamentation, colour or container for goods or any combination contained within this definition.
Registration of a Trade mark in South Africa
According to Section 9 of the Trade Marks Act, for a mark to be registered it has to be capable of showcasing that it is able to distinguish goods or services of a person, in respect of which it has been registered.
Why have trademarks played a key role in the sporting industry?
A trademark is key in brand appreciation around the world for athletes, clubs and sporting organisations. For bigger superstars around the world most earn more off the field due to the lucrative nature of brand endorsements.
Branding in sports in South Africa
One of the biggest sporting spectacles that occurred in South Africa was the FIFA World Cup in 2010. As such FIFA had to be on the ball when it came to protecting the various brands in connection with the World Cup. Thus, generic trademarks like FIFA have been registered within South Africa for many years with regard to a wide scope of goods and services.
The problem that arises when huge sporting spectacles are taking place within South Africa or abroad is that of ambush marketing, which can be defined as an attempt by an organisation, product or brand to create the impression that they are an official sponsor of an event or activity, by connecting itself with that event or activity without undertaking to become an official sponsor and paying the respectful sponsorship fees.
In South Africa we saw ambush marketing come into play during the 2023 Rugby World Cup. Eskort Meats erected a billboard that stated “Go Springbox Love Eskort” which displayed the Springbok’s team colours and the South African flag. To the ordinary person they may be deceived into thinking that Eskort meats is an official sponsor of the National Rugby team, by virtue of advertising on the billboard with similar marks.
Ultimately, the High Court ordered that Eskort meats take down all the offending marks from all signage, marketing material, and products.
Roger Federer and Nike and the RF logo
For many of sports fans alike we are used to seeing Roger Federer on the tennis courts in his usual Nike apparel showcasing his initials ‘RF’. Roger had a sponsorship agreement with apparel company Nike for 20 years, however, the reported 7.5 million dollar per year deal expired in March of 2018. After his agreement with Nike terminated Roger signed a commercial agreement with Japanese apparel brand Uniqlo for an astounding 22 million dollars per year.
In terms of ownership of the RF logo trademark Nike was the rightful owner of it. Subsequently, Roger is a registered owner of trademarks that cover his full name and signature. In the absence of a valid commercial agreement between the parties and the continued usage of the RF logo by Roger, he put himself at risk of trademark infringement of the Nike trademark, despite them being his initials.
In 2020 Roger’s company that are the holders of his other trademarks reached an agreement to purchase the RF logo from Nike. In true testament to his popularity his new sponsors released a line of caps bearing the RF logo, which sold out in minutes. Indicating how important a trademark is for maintaining the brand for an athlete.
IMAGE RIGHTS
What are Image Rights?
The term image rights can be defined as the ability of a sports person to exclusively exercise control over their name, image, reputation, identity, voice, signature or initials or nickname in any commercial advertising.
Consequently, image rights are being exploited by top athletes for commercial gain, but they are also subjected to certain forms of abuse. If we take a look at the case of Cristiano Ronaldo during his playing time in Spain for Real Madrid, he agreed to pay an 18,8 million Euro fine in exchange for not serving a jail sentence. Ronaldo was accused of defrauding the Spanish Government of 14.8 million Euros coming in the form of unpaid taxes for a period of 3 years The Madrid regional state prosecutor put forward that Ronaldo hid behind a shell company in the Virgin Islands (Tax haven) to create a blur to hide his true income from the Spanish tax authorities.
It was alleged that Ronaldo did not declare an income of 28.4 million Euros relating to his image rights, but instead he declared 11.5 million Euros for this period and that his real income was close to the figure of 43 million Euros.
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