|
Summarising the principles
The Australian means of protecting an
athlete’s image had its genesis in 1920s
England, where the distinction between an
amateur and a professional sportsperson was
very important. An amateur golfer
complained that an advertisement featuring
him with the defendant’s chocolate bar in
his back pocket defamed him because it
insinuated that he was prepared to lend his
image to endorse the chocolate bar.
Evidence showed that the defendant
understood that other amateur sportspersons
would object to their image being used. The
House of Lords found that the jury was
entitled to infer from the advertisement
that the defendant had been granted the
golfer’s permission to use his image when,
in fact, he had not.
In the 1960s, two professional dancers
argued that an album producer had engaged in
‘passing off’ when it reproduced a
photograph of the dancers on the cover of an
album containing ballroom dance music
without their permission. The plaintiffs
were well-known by professional dancers and
teachers, which was the defendant’s target
audience. The Court held that the audience
would believe that the plaintiffs had agreed
to the defendant’s use of the photograph to
promote the album. The producer therefore
misrepresented to the public that the
plaintiffs had recommended the defendant’s
album.
These decisions influence more recent
Australian cases. In the mid-1980s, a
successful Olympic athlete complained
unsuccessfully that the use of a photograph
of him competing in the long jump
misrepresented that he had permitted the
defendant to use the photograph. The Court
found that the defendant did not use the
photograph to promote its services per se,
but ‘excellence in sport’ and further, the
target audience would not recognise him
without seeing his name.
On the other hand, in 1996, Kieren Perkins
succeeded against Telstra when Telstra used
a photograph of Perkins in the pool wearing
a cap bearing Telstra’s logo in an
advertisement for its telephone services.
The Court found that Telstra had represented
to the public that Perkins was a member of a
group which Telstra sponsored when he was
not, and had attributed attitudes and
aspirations to Perkins without his knowledge
or consent. The misrepresentations had not
damaged Perkins’ reputation, but had harmed
Perkins’ ability to exploit the commercial
advantage his success and fame had given
him.
“Leapin’ Leo Barry”
In the 2005 AFL Grand Final, Swans player
Leo Barry marked the football amongst a
number of players in the Swans backline to
halt a final Eagles thrust forward. Seconds
later, the final siren blew to end the game
in the Swans’ favour. In 2006, the AFL
allowed Tabcorp to use a photograph of
Barry’s mark to promote its services. Barry
has claimed that:
-
the AFL needed to
obtain Barry’s permission to use the image of him taking the mark captured in
the photograph; and
-
as it did not, the
AFL has engaged in misleading and deceptive conduct and passing off.
The Federal Court referred the matter to
mediation and the claim is still before the
Court. Should the matter proceed to trial,
it will prove an interesting test case of
the authorities established over the last 90
years.
Guidelines
The authorities establish a number of useful
guidelines for athletes, sports
administrators, sponsors and companies
wishing to use athlete endorsements:
-
Only well-known
athletes are likely to prevent another party from using their image or name to
promote goods or services without the athlete’s permission (unless the athlete
has registered a trade mark);
-
If the other party
is using the athlete’s image or name to promote a concept (such as ‘excellence
in sport’), it is unlikely that the athlete could stop the other party;
-
However, these
companies should obtain permission of the athlete to use his/her name or image,
in the event that the athlete becomes well-known in the meantime;
-
Sports
administrators may seek a blanket consent from the athlete to the
administrators’ use of the athlete’s ‘image rights’ to promote the sport and/or
its interests. However, the parties need to carefully consider and agree upon
the limits of these interests; and
-
The situation
should be monitored closely - where the athlete is no longer contracted or is no
longer part of the team, a representation that the athlete is under contract or
is part of the team may be misleading or deceptive
Conclusion
The general prohibition against misleading
and deceptive conduct applies equally when
sport intersects with commerce. Product
endorsements are becoming a significant
means of earning income and athletes are
becoming increasingly keen to preserve the
integrity of their ‘image’. For sports
administrators and corporate sponsors, using
the athlete to promote their products and
services is sometimes a valuable means to
lifting their profile, but careful
management of such use is necessary, given
the Courts’ readiness to find that the
public may be misled or deceived by the use
of a well-known athlete’s name or image for
promotional purposes without his/her
permission. |
