Transcript Sport Marketing and the Law

Agenda – KINE 3510 Week 4
• In the News: 2016 Summer Olympics - Rio de
Janeiro; Forbes franchise valuations ; NFL labour
situation
• Sport Marketing and the Law
– Interview with Paresh Trivedi, Attorney at Law,
Proskauer Rose LLP
• Public Relations
• Sport Marketing and Popular Culture: A
Synergistic Relationship
– Branded segment (LeBron James documentary)
– Spotlight: WTA, NBA, WWE
– In-class exercise: “Sexying” up the PGA
• Recap
The Legal Aspects
of Sport Marketing
Objectives
• To introduce the key legal concepts and issues that
affect the marketing of the sport product
• To inform sport marketers about the need, and the
methods, to protect intellectual property associated
with the creation of a sport product or event, or
with ideas developed out of sport sponsorship and
licensing programs
• To examine the legal limits of sport marketing and
promotion so sport marketers can avoid legal
liability
What Is Intellectual Property?
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Primary goal of intellectual property law is to
reward invention, ingenuity, and creativity in an
effort to maintain an open and competitive
marketplace.
It is made up of three areas:
1. Trademarks
1. Protect unique words, names, symbols and slogans
2. Copyrights
protect original works of authorship
3. Patents
protect inventions (new designs and processes)
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Trademarks, copyrights and patents can be
licensed, but use without permission is
infringement
Trademark Law
• A trademark is a word, name, symbol, or device
used by a person, generally a manufacturer or
merchant, to identify and distinguish its goods
from those manufactured and sold by others, and
to indicate the source of the goods (see endnote 5
in book).
• Types of trademarks:
– Trade dress
– Service mark
• e.g World Series, NCAA Final Four
– Collective mark
• e.g. NHLPA logo
Overview of Trademark Law:
Purposes
• Trademarks identify the source or origin.
• Trademarks protect consumers from
confusion or deception.
• A trademark is used to designate a
consistent level of quality.
• A trademark represents the goodwill of the
owner’s products or services.
• Trademarks signify a substantial advertising
investment.
Types of Trademarks
Strength relates to distinctiveness and level of
protections:
• Fanciful: Distinctive
• Arbitrary: Common term associated with entity
• Suggestive: Connotes something about
product
• Descriptive: Commonly used word or phrase
that is difficult, although not impossible, to
protect
• Generic: Commonly used word or phrase that
is never entitled to trademark protection
Trademark Infringement
• Traditional trademark infringement:
Confusion or mistake or used to deceive
• False designation of origin
• Dilution
e.g. Tony LaRussa vs. Twitter
Determining Trademark Infringement
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The strength of the trademark
The degree of similarity
The similarity of the products involved
The market channels involved
The distribution channels involved
The intent of the defendant in adopting the
trademark
• The sophistication of the potential consumers
• The evidence of actual confusion
e.g. United States Olympic Committee vs. Olympic Supply
Other Issues Related to Infringement
Defenses to Trademark Infringement:
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Abandonment
Fair use defense
Genericness
Functionality
e.g. Robert Welsh vs. The Big Ten Conference
• Cybersquatting
– e.g. Agassi Enterprises Inc. vs. andre-agassi.com
Ambush Marketing
• When a company capitalizes on the
goodwill of an event by using tactics to
imply an official association with that sport
event
• The larger and more popular the event, the
more often ambush marketing arises
Copyright Law and Sport Marketing
Copyrights, for instance, protect the music that
is played during games and requires sport
marketers to seek approval through ASCAP,
which protects musicians’ copyrights in their
works.
Works of Authorship
That Are Protected
• Literary works, such as books and stories
• Musical works, including any accompanying words
• Dramatic works, including any accompanying
music
• Pantomimes and choreographic works
• Pictorial, graphic, and sculptural works
• Motion pictures and other audiovisual works
• Sound recordings
• Architectural works
Copyright Act Grants a Copyright
Owner the Right
• To reproduce and distribute copies or sound recordings of
the copyrighted work to the public by sale, rental, lease, or
lending
• To prepare derivative works based on the copyrighted
work
• To perform the copyrighted work publicly (literary, musical,
dramatic, and choreographic works; pantomimes; motion
pictures, and the like)
• To display the copyrighted work publicly (literary, musical,
dramatic, and choreographic works; pantomimes; and
pictorial, graphic, or sculptural works, including individual
images of a motion picture or other audiovisual work)
• To perform the copyrighted work publicly by means of a
digital audio transmission (sound recordings)
Copyright Infringement
Copyright infringement occurs when someone makes
an unauthorized use of a copyrighted work. Courts
consider four factors when determining whether
copyright infringement has occurred:
1. The purpose of the use, including whether such
use is of a commercial nature or is for nonprofit
educational purposes
2. The nature (character) of the copyrighted work
3. The amount and substantiality of the portion used
in relation to the copyrighted work as a whole
4. The effect of the use on the potential market for, or
value of, the copyrighted work
Defenses to Copyright Infringement
The fair use doctrine:
• Criticism
• Comment
• News reporting
• Teaching (including multiple copies for classroom
use)
• Scholarship
• Research
e.g. Showing Animals respect and Kindness (SHARK)
vs. Professional Rodeo Cowboys Association
Patents
• May be granted to anyone who invents or discovers
any new and useful process, machine,
manufacture, or composition of matter, or any new
and useful improvement.
• A patent cannot be granted for a mere idea, only for
the actual invention or complete description of it
(see endnote 106 in book).
• Patent lasts 20 years. After patent runs out, anyone
can use technology or make product.
e.g. Renata Marcinkowska vs. IMG Worldwide Inc.
The Right of Publicity
and Invasion of Privacy
• The right of privacy protects against intrusion on
one’s seclusion, the misappropriation of one’s
name or likeness, unreasonable publicity, and
placing one in a false light.
• The right of publicity prevents the unauthorized
commercial use of an individual’s name, likeness,
or other recognizable aspects of his or her persona.
e.g. World B. Free vs. Nike Inc.
Emerging Issues
• Global protection of intellectual property
• Ownership of “real time” information and
player statistics
Public Relations
Objectives
• To understand public relations and its role in
positioning and in the formulation of the marketing
mix
• To recognize the importance of effective
community relations programming in product
positioning and effective marketing efforts
• To understand the role, scope, and influence of the
media and how that role can be used in conjunction
with public and community relations programming
to alter perceptions and influence public opinion
and support
Defining Public Relations
• “Public relations is the management function that
evaluates public attitudes, identifies the policies
and procedures of an individual or an organization
with the public interest, and executes a program of
action to earn public understanding and
acceptance” (see endnote 3 in book).
• It is “the profitable integration of an organization's
new and continuing relationship with stakeholders,
including customers, by managing all
communications contacts with the organization
that create and protect the reputation of the
organization” (see endnote 4 in book).
Public Relations Formula
• Public relations = Media relations +
Community relations
Functions of PR Department
The ultimate goal for the public relations department is
to cultivate a positive image of the company by
proactively seeking and accommodating favorable
opportunities in the press through these means:
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Planning campaigns
Facilitating interviews
Disseminating press releases
Compiling statistical information and other helpful
promotion information
• Holding press conferences
Public Relations Specialist Skills
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Building Relationships
Communication
Creating the Public Relations Plan
Making the Pitch
Managing the Story
Talking Points
Crisis Management
Media Relations
• Reactive: Responds to inquiries.
• Proactive: The point of initiation is the
organization rather than some external
entity.
• Interactive: Develops mutually beneficial
relationships with the media and assists the
media on a variety of issues.
Three Distinct Forms
of Community Relations
1. Those initiated by players
2. Those initiated by teams or institutions
3. Those initiated by leagues or governing
bodies
Public Relations Integrated
With Marketing
Interactive marketing communications
strategy that seeks to create a variety of media
designed to convey the philosophies, goals,
and objectives of an organization to identified
groups and publics for the purpose of
developing a relationship based on
comprehension, interest, and support
Public Relations Functions
• Provide information and general communication (to
consumers, shareholders, suppliers, competitors,
government agencies, and the general public).
• Inform and communicate.
• Shape and enhance image.
• Promote employee relations.
• Gain political or popular support.
• Recruit and develop business.
• Launch new products or innovations.
• Generate and collect feedback.
• Cope with crisis.
Media Impact on Sport Public Relations:
Sport in the Daily Mix of Life
• Athletes away from the playing field: Ball
four
• Sport as entertainment: Monday Night
Football
• Expanded sport coverage: ESPN
Strategic Planning
and Public Relations
• Strategic planning is a philosophy of
management based on identifying purpose,
objectives, and desired results; establishing
a realistic program for obtaining these
results; and evaluating the performance.
• Public relations initiatives should be a part
of the strategic plan, and public relations
professionals should have input regarding
the development of the plan.
Sport Marketing and
Popular Culture:
A Synergistic
Relationship
Experiential DNA
Media
Politicians
Economic
Touch, sense,
feel
Dramatic
Producers
Sports
Consumers
Cultural/
Political
Aesthetic
Technological
Fans
Competitors
Interface Value
• Represents a brand’s ability to connect to multiple
audiences
• The more it resonates the higher the interface
value, the more successful the entertainment brand
• It is the material connection between the brand and
the experience
• Long tail -> the ongoing demand for the interface
value the brand generates
• Focusing on the long tail helps secure the future
success of the entertainment brand
– e.g. various MLSEL ventures
What strong examples exist in sport?
Criteria for Strong Interface Value
• Rich and consistent history (characters, narratives,
archetypes)
• Story that is adaptable to different opinions and
interpretations
• One that resonates with my own life
• Experiential adaptability
• Star power (personified interface value)
• Previous history of brand success in a different
market
• Mayhem and mystery surrounding the production
process
• Production technologies as they feed the story and
its characters
• An effective blending of all these elements
Authenticity
• Connection to athletes
• Hard to generate, manage and prolong
• Genuine original true performer vs. fake
engineered deceptive performer
• Deauthentication – how? – “Fall from Grace
Myth”
– e.g. baseball drug scandal (i.e. McGwire, Clemens)
• Paradise myth - Rookie + business accolade
= superstar world-class entertainment
product
– e.g. rise of Tiger Woods
Film
Music
Video Games
Sports
Fashion
Media
Technology