As attorneys, we are all well aware of how diverse the practice of law is and how each area of the law intersects with other areas. However, not many non-attorneys are aware of the intersection between intellectual property law and sports and entertainment law.
Like many other children of the nineties, I grew up idolizing basketball megastar Michael Jordan. As a kid growing up on Tobacco Road, I was in awe of Michael Jordan’s seemingly unlimited skill set. So you can imagine many children’s collective disappointment when our hero was not in several video games growing up. The National Basketball Association (NBA) and the National Basketball Players’ Association Shared Licensing Agreement is one reason for that.
On the professional level, professional athletes have the option of opting out of their league’s licensing agreements. This enables athletes to search for their own licensing agreements or just not be a part of the league’s video games, trading cards, memorabilia, and/or other potential revenue streams. At the zenith of his playing career, Michael Jordan opted out of the National Basketball Players’ Association Shared Licensing Agreement, thereby, not allowing video game companies to use his name and likeness in their products. This led video game companies to become creative and create a six foot six inch, bald, shooting guard in a red and black jersey, with a number other than 23 and the highest rating in the game. Michael Jordan’s name was never mentioned, nor was his likeness too closely appropriated.
Many cynics in the sports and entertainment industry believed that Jordan’s rationale for opting out of the National Basketball Players’ Association Shared Licensing Agreement was that he thought he was bigger than the league and could command more money. However, Jordan is on record as saying he wanted full control of his name, image, likeness, etc., for accurate depiction.
Other professional athletes have followed in Jordan’s footsteps and opted out of their league’s licensing agreements such as Barry Bonds with the Major League Baseball Players Association and Lavar Arrington with the National Football League Players Association.
Since Jordan’s final retirement from the NBA in 2003, he has licensed his name, image, and likeness to video game companies for inclusion in multiple games for example, as a member of the ’90s all-decade team or as a special character.