Friday, July 1, 2011

A Picture is Worth a Thousand Words. What is a 'Non-picture" worth?

The Los Angeles Times is running an interesting story on how and all NBA team sites have removed all player images from their sites. Now when you surf over to your favorite team's site or, you are greeted by images of pictures David Stern's mug (meh), cheerleaders (niiiiiice), and WNBA players (yiiiiiikkkkkkkkeeeesssss!).

Notre Dame Law Professor Ed Edmonds claims that the removal is due to the fact that the now expired NBA CBA gives to the NBA the authority to group license player images. Indeed, Article XXXVII of the 2005 NBA Collective Bargaining Agreement gives the NBA the "exclusive right to use the 'Player’s Attributes' of each NBA player as such term is defined in, for such group licensing purposes as are set forth in, and in accordance with the terms of the Group License Agreement." I guess the argument is that because the collective bargaining agreement expired, the NBA no longer has the right to use any player images. The reason the NFL's website(s) still have images of Clay Matthews and touchdown celebrations because the NFL and NFLPA negotiated their licensing deal separate from their Collective Bargaining Agreement.

Still, I tend to agree with Tulane University Law School Associate Professor Gabe Feldman that the NBA is being overly cautious. In taking an intellectual property law view. The images of the players should fall under the legal doctrines of either "Fair use" or "work-made-for-hire" and thus, can be used by the NBA.

I would not be surprised if this was more of a tactical decision by the NBA to exert pressure on the NBA players by trying to lessen the player's visibility. We as fans associate the NBA players with their physical prowess of slam-dunking the ball through the hoop. If our only options during the lockout involves watching NBA players dressed in fancy suits or WNBA lay-ups, we as fans might subconsciously start to get pissed off at the players.

Any thoughts or opinions? What say you Intellectual Property Professionals?

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