Sport and Guernsey Image Rights - David Evans

The image of sport has changed. Over the last 20 years the cult of celebrity has become fully entrenched within most high profile sports. The reasons behind this are many, but the overriding result is that those who are at the top of their game will now be treated with the same degree of recognition and renown as film stars, rock stars and other celebrities. In addition, the ability of those sports personalities to earn from their fame has increased exponentially as a result. This creates an interesting situation; the sports personality earns income from doing their 'day job' but the bulk of their income will now be derived from endorsement deals and sponsorship. The payment for these deals will be based on the licensing of their image rights. Not only this, but that non-playing income has the ability to continue long after the playing income ceases. This leaves us with the situation of having to manage these image rights for a long periods and developing an image rights strategy based on each particular player's requirements. Due to the increasing complexity of image rights deals and processes, this is an area that requires expert guidance in order to achieve the desired result. In addition to these considerations, the very notion of image rights is hugely problematic from a UK perspective. Under UK law, there is no definition of an image right per se, and the Courts have struggled with various ways in order to try to fill this gap. As a result, the protection offered to the celebrity or personality client are few and far between, with none of the options delivering a real solution. Even where the personality has established an image rights company, if the management of those underlying rights is not conducted properly, there may be significant repercussions at a later date. (Gareth Bale has trademarked his 'eleven of hearts' image) At the end of 2012, Guernsey introduced the world’s first registrable image right - giving the ability to register, licence, clarify and protect what has, to date, been a rag bag of limited rights. Since the end of 2012, the register has seen applications from DJs, hairdressers, tennis players, brand consultants and musicians. Apart from being on the register, these people all have in common an ability to generate significant wealth from the use of their image quite apart from what they might do for their day job. The Guernsey Image Right allows personalities to register their images, nicknames, videos, mannerisms and any distinctive characteristics that identify them. These rights will be registered on the register and can include all of those features that are so difficult to define in a contract. Image rights contracts typically contain vague definitions for ‘gestures’ or ‘mannerisms’ which are now able to be clearly defined and can be directly referred to in relevant contracts. There are several main advantages to registering a formal right, not only for clarity of right, but also for succession planning, wealth management and potential enforcement. One only has to think about the difficulties faced by the estate of Seve Ballesteros and the naming rights associated with the late golfer to realise that the potential for problems can continue long after a playing career is over. With such valuable assets, it seems silly to leave such ambiguity to the drafting and the potential for misinterpretation. One of the by-products of modern sport is the emergence of the personal brand, something which was not perceived until recent times. This value has to be harnessed and nurtured in order to provide the player with the best value over their playing career and beyond. It is clear to us that the cult of sports celebrity will only grow larger as time passes. Sports stars now have very lucrative sponsorship deals which long outlive their paying careers. As a result of this, a far more systematic approach is necessary to ensure that these rights are properly managed for the long term. By considering the value of a player’s image rights as part of a larger portfolio of intellectual property rights, enables both preservation and growth of these valuable assets. David Evans is a Director at Collas Crill IP. David is a law graduate of Westminster University and has spent the past 10 years actively involved in the IP business. He spent the first 6 years as head of IP for a multinational company, during which time the company's IP portfolio grew massively following international expansion. For the past 4 years David has been an independent IP consultant, advising businesses small and large on their IP strategies and portfolio management