The policies of the NCAA concerning use of student athletes’ names, images and likenesses have been a lightning rod for controversy in recent years. Most recently, former UCLA basketball star Ed O’Bannon achieved an interim victory when, on February 8, 2010, a judge in San Francisco denied the NCAA’s motion to dismiss a class-action lawsuit led by O’Bannon. A large part of the claim centers around the NCAA’s agreements that athletes must sign, allowing the NCAA use of students’ names and images for the NCAA to promote events, activities or programs. Since I have colleagues or clients on both sides of the aisle, I’ll remain neutral on the issue and let you come to your own conclusions. Here’s a link to the story:
A new bill, HB 1335, is in front of the Indiana legislature which seeks to bring clarification to certain aspects of Indiana’s right of publicity provisions. Specifically, the bill would clarify application of domicile analysis as well as common law right of publicity under Indiana law. The bill is up for a vote by the House in the first week of February, then it will goes to the Senate in the second week of February. Here is a summary of the bill:
HB 1335 Provides that, for purposes of the law concerning rights of publicity: (1) to codify the common law in existence before July 1, 1993, the law applies to a cause of action commenced after June 30, 1993, regardless of when the cause of action arose; (2) if a personality died testate before July 1, 1993, the rights recognized under the law are deemed to be in the possession of the current holder of the interests of the beneficiary of the residuary clause of the testamentary instrument as if the rights had been distributed according to the testamentary instrument and transferred according to the rights of publicity and, if a personality died intestate before July 1, 1993, the rights recognized under the law are deemed to be in the possession of the current holder of the interests as if the estate had been distributed according to the law where the estate was probated and transferred according to the rights of publicity; and (3) if a testamentary instrument does not contain an express transfer of the deceased personality’s rights of publicity, a provision in the testamentary instrument that provides for the disposition of the residue of the deceased personality’s assets is effective to transfer the rights recognized under the law in accordance with the terms of the provision. Makes other changes concerning the transferability and descendibility of rights of publicity
I have read the substance of HB 1335 and I’m inclined to give my support to its provisions as currently drafted. The entire bill can be viewed at this link: http://www.in.gov/apps/lsa/session/billwatch/billinfo?year=2010&request=getBill&docno=1335
Last week, I had the opportunity to speak at the American Intellectual Property Law Association’s annual mid-winter conference in La Quinta, California. The panel presentation I was part of focused on various intellectual property matters, while my specific presentation concentrated on recent Right of Publicity cases and legislative developments. The Right of Publicity presentation generated a strong crowd response and dialogue, which made for an engaging session. The conference featured decorated speakers including senior executives from IBM, Microsoft, Texas Instruments, Palm, AT&T, Lockheed Martin, Caterpillar, and many others, as well as attorneys from all over the world. AIPLA puts on an impressive program and I would highly recommend it. The location, La Quinta, was quite impressive as well. Be sure to check out AIPLA’s future programs at http://www.AIPLA.org for more information.