Welcome to the Symmes Law Group, PLLC’s – Sports, Entertainment & Trademark Lawyer Blog. This is an interactive blog that details current events in sports, entertainment, and trademark law as well as discusses legal issues and projects that are currently being undertaken by Seattle trademark lawyer Richard Symmes and Symmes Law Group, PLLC.
Symmes Law Group strives to build long-term relationships with our clients throughout the Seattle metro area as well as around the world by offering unparalleled personal service. If you are need of a legal representation in association with your trademark or entertainment matters please contact Symmes Law Group, PLLC today at firstname.lastname@example.org or call 206-682-7975 to set up an initial consultation.
I am excited to announce that my article, The Evolution of Sports Law has been published in the latest October 2015 Article of the NWLawyer Magazine. You can check out the article HERE. I will also post the full article below for your reading consumption.
The first thing that anybody involved in sports law will tell you is that there is no such thing as sports law. The term “sports law” can encompass numerous practice areas that concern athletes and the business of sports. For instance, one single client athlete can have issues in business, criminal, contract, family, intellectual property, non profit or tort law to name a few. Other athlete issues involving league rules or National Collegiate Athletic Association (NCAA) rules must also be able to be interpreted so that the athlete’s best interests are protected. On a bigger scale, the business of sports is big business and billions of dollars are at stake when negotiating TV contracts, dealing with public relations nightmares, and collective bargaining agreements among sports leagues.
This has not always been true. Believe it or not, the business of sports was not always big business and athletes were not always highly compensated, subjected to drug testing or allowed to use their name and likeness from their college days for profit. This article will discuss some key decisions that have shaped the way athletes participate in sports and how we view them today.
Free agency, with regards to the major sports leagues such as Major League Baseball (MLB), Major League Soccer (MLS), National Basketball Association (NBA), National Football League (NFL), and the National Hockey League (NHL), was not always so free and star players in the early days of professional sports were much more likely to play their entire career with one team. This was due to something called the reserve clause which stated that at the expiration of a player’s contract, the rights to that player were to be retained by that team. In 1972 the Supreme Court in Flood v. Kuhn, 407 U.S. 258 (1972), held that MLB could uphold the reserve clause through an anti-trust exemption, however the Court admitted that the exemption was an anomaly and baseball was considered part of interstate commerce. That admission led to an arbitrator later nullifying the reserve clause and opening the door to free agency in all sports. This was a big win for professional athletes everywhere as they could now negotiate with all interested parties for the highest compensation any one suitor would pay.
With this new found freedom, athletes now had to change teams through free agency came the need for athlete agent representation, and thus the sports agent was born. In the early days of sports anybody could call themselves a sports agent, as the barrier to entry was nonexistent. There was essentially no regulation of agents and athletes would often suffer the consequences by receiving poor advice. Today, the business and regulation of sports has evolved such that most states have laws that regulate athlete agents, most sports leagues have their own certification programs to regulate agents of their respective leagues, and the NCAA has rules in place that affect how athletes may interact with sports agents. In Washington State RCW 19.225 is on the books, otherwise known as the Uniform Athlete Agent Act. Those who violate the Washington Uniform Athlete Agent Act could face a stiff penalty of up to $10,000 and be charged with a class C felony. These regulations were put in place to look out for the best interest of the athlete and make sure agents are not taking advantage of athletes. Young athletes, who upon an initial meeting with an agent, are usually still in college and may come from underprivileged backgrounds. Currently there are more than 460,000 college athletes and less than two percent will go pro in their sport. This creates a scarcity of potential clients for athlete agents to represent and the competition is fierce to represent the best prospects.
Due to the social and financial allure the sports industry provides, agents have been known to bend if not break the rules and regulations in order to land a top client. Agents have previously admitted or been found guilty of paying athletes or providing improper gifts to athletes in college in exchange for the opportunity to represent them when they go pro. This conduct of course violates NCAA rules and many state rules which may lead a player to be kicked off his/her college team, cause the athlete financial loss due to a drop in draft position, and leaves the athletes’ university left to face potential sanctions.
Once an athlete has finished his or her amateur career, there is only a limited number of years to maximize the athlete’s earning potential in the pros. For example, the average career of a professional athlete in one of the major sports leagues is only three to five years. With success comes great rewards in the form of long term contracts that can be in the form of standard player contracts or lucrative endorsement deals. This will in turn drive the athlete to do whatever it takes to reach the peak of success. Professional sports leagues know the stakes are high and therefore have recently taken measures to ensure their leagues are putting pure, non enhanced athletes in play by regulating substances athletes can consume. The goal is to make sure that performance enhancing drugs are not being consumed as well as regulating any illegal substances which could negatively reflect on the leagues.
One of the first challenges to drug testing happened in 1990 when student athletes at Stanford University challenged their school and the NCAA’s drug testing policy and said it invaded their constitutional right to privacy which was upheld. However, later, in 1999, a California appellate court ruled that schools had a compelling interest to keep drugs out of their schools and therefore drug testing was not an invasion of student athletes privacy. On the professional level, athletes are subject to their leagues and associations’ policies and procedures. These policies and procedures can regulate doping, drug abuse, and other issues such as personal conduct. The penalties for violating such rules can include fines, suspensions, or even banishment for extreme violations.
One such example of a league policy rule came to the forefront in the Seahawks most recent Super Bowl run involving Marshawn Lynch. The NFL has stated in their policies and procedures that players must make themselves available to the media or else they could be fined. Lynch did the minimum to comply with the rule by barely speaking to the media, but nonetheless making himself available, and thus avoiding a fine. If a player disputes a suspension or a fine issued by a league there are usually league policies in place in which players can appeal an ad adverse decision.
In a recent case decided last summer, O’Bannon et al. v. NCAA et al., No. 09-3329, 2014 WL 3899815 (N.D. Cal. Aug. 8, 2014)., the issue of whether student athletes should be able to profit from their own name and likeness used in college was decided. The NCAA argued that paying its student athletes would be a violation of its concept of amateurism in sports, while O’Bannon, a former basketball star who played on UCLA’s 1995 National Championship team, argued on behalf of all division I men’s football and basketball players that upon graduation players should be compensated if colleges use their images for commercial purposes. The court ruled in favor of O’Bannon and stated that the NCAA rules and bylaws operate as an unreasonable restraint on trade, in violation of antitrust law. This is the first step in what I believe will eventually lead to student athletes being paid a modest stipend while playing collegiate sports and, incidentally, making their schools billions of dollars.
The evolution of sports law is no different than any other type of law. It continues to evolve with the changing times and technology. New rules and court decisions will be put in place to react to the need for change when issues arise. If we have come this far over the last 50 years in sports, it’s hard to imagine what the business of sports and the laws that regulate them will look like in another 50 years.
On Monday 5/25/15 I had the pleasure of being a guest of Dr. James Gore on his radio show New Urban Unlimited on 1150AM KKNW in the Seattle area. I will be on the show which airs M-F at 6am, the last Monday of every month in 2015. You can listen to the most recent show on the link above. During this show Dr. Gore and I have a candid conversation about trademarks and intellectual property.
If you have additional questions regarding trademarks, copyrights, or entertainment law and how you can protect yourself, give Symmes Law Group a call at 206-682-7975 to learn about your options.
Receiving a subpoena letter related to a copyright infringement case from your Internet Service Provider (ISP) such as Comcast or Century link or receiving a demand letter offering to settle your case prior to litigation can be a shock to the system. Most people have never received these letters before and are struggling to figure out what they mean. In short, movie studios or other copyright holders are cracking down on unauthorized file sharing and downloading through computer applications such as Bit Torrent. The unauthorized downloading and file sharing is a violation of Federal copyright law and may be punishable by up to $150,000 fine. The copyright holders generally don’t want to seek such extreme penalties and are only looking to recoup money lost due to the illegal file sharing and to generate income for investors and non A-list actors who receive money from the films. Not everybody involved in the entertainment business is rolling in dough. Just last week I met with an actor who had a small role in Fight Club and was now seeking to declare bankruptcy due to his $30K salary from acting and overwhelming debt.
If you are somebody who has received a letter from your ISP informing you that you are part of a lawsuit and your name will be provided to an attorney or you have received a demand letter offering to settle the lawsuit against you, you have a few options, but none of them are great. In any event, I would encourage everybody to discuss this matter with a qualified copyright attorney to go over your options.
1. You could retain an attorney to file a motion to quash the subpoena to try and prevent your information from being disclosed to the copyright infringement attorney. These motions are usually unsuccessful and your name and information will be disclosed upon filing such a motion. Hiring an attorney can be costly (at least $5,000 according to this Seattle copyright attorney), however some attorneys may be willing to negotiate a settlement on your behalf for an hourly rate.
2. You could settle your case for copyright infringement by calling up the copyright infringement lawyer who filed the case or sending an email wishing to settle. In my experience the copyright holders are willing to settle for less than it would cost to hire a lawyer and go to litigation. Litigation is time consuming and costly and in the end, most cases end up settling out of court.
3. You could choose to ignore all demand letters and attempts to settle your case. This option involves some risk on your part. Generally, failure to settle early on will result in the amount the copyright holder is willing to accept to rise as costs to continue to seek a settlement are incurred. Further, a copyright infringer risks being named as a defendant party in the case which is public record and could face a penalty of up to $150,000 if a default judgment is entered. You can ask your attorney to reivew the cases of Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 77 U.S.P.Q.2d 1933 (E.D. Pa. 2005); U.S.C.A. Arista Records, L.L.C. v. Tschirhart, 241 F.R.D. 462 (W.D. Tex. 2006); U.S. ex rel. Koch v. Koch Industries, Inc., 197 F.R.D. 488 (N.D. Okla. 1999) and BMG Music Entertainment v. Tenenbaum (D. Mass.) [1:07-cv-11446].
At the end of the day, if you have received one of these letters you will need to make a decision that is best for you. Know that copyright holders need to protect their rights so that they can continue to make films that cost millions of dollars to make and the people working in the entertainment industry need to make a living and earn an income off of the royalties of the works whether you see a movie in the theater, rent from Netflix or download a song on ITunes.
This Seattle copyright attorney was on the local news yesterday talking about illegal downloading of feature films, the increase of lawsuits in the area and potential consequences. For the full story check out the Komo 4 News website. Here is the full text:
SEATTLE — Washington state has become a hotbed for illegal downloading, but the culprits are quickly finding out that what they thought was a free movie could end up costing them thousands of dollars.
Hollywood is coming to Seattle, but not to make a movie. Rather, studios representatives are in town to track down people who’ve illegally downloaded their products.
Many movie fans think that’s a good idea, because filmmakers deserve to be paid for their work.
“Well, that’s what artists do. Artists need to be paid for what they do for a living and you’re not there to just give it away,” one moviegoer said.
That includes artists who worked on an animated feature called “Zambezia.” The movie doesn’t officially come out until March, but that hasn’t stopped people from illegally downloading pirated versions.
“A lot of it is coming from something called bit torrent, where people download individual pieces from different users and create what’s known as the swarm,” said Seattle attorney Richard Symmes, who’s leading the charge against the downloaders.
Washington’s tech savvy population is now a copyright litigation hotbed, and a studio is coming to town to track down those who have illegally downloaded its movies.
Symmes said the move isn’t about greed, but about the studios being fairly compensated so they can pay their employees.
A private company has managed to get the IP addresses of the local offenders, and local Internet providers are now being subpoenaed to get the names of those subscribers.
Symmes said anyone who has illegally downloaded movies could be in for a court battle.
“It would probably be more expensive to go ahead and fight this rather than take a nominal settlement and just make this go away,” he said.
Symmes expects the IP list to grow as other film studios join in.
A trademark license is an agreement through which one organization allows another to draw on its trademark. Ostensibly, till last year, no court had been asked to decide if a trademark licensee in bankruptcy can presume, or presume and consign, a non-licensed trademark license without the consent of the trademark owner. The first answer to that query was found in a case named In re: N.C.P. Marketing Group, Inc., 337 B.R. 230, at a time when the U.S. District Court (Nevada) declared that trademark licenses are private and non-convertible, deficit of a regulation in the trademark license on the other hand. In the concluding part, the court stated that according to the Lanham Act, (the federal trademark statute), a trademark holder has the right and responsibility to supervise the quality of products sold under the trademark:
Given that the holder of the trademark has an interest in the entity to whom the trademark is consigned so that it maintains the quality, value, and goodwill of its merchandise and thereby its brand name; trademark licenses are exclusive to the beneficiary and not freely transferable to a third party.
The U.S. Court of Appeals for the Ninth Circuit (including California, Nevada and other western states) had formerly improvised that the key Bankruptcy Code terms involved, Section 365(c)(1), in order to prevent a debtor from taking on a contract while it does not hold the right to consign it.
Constituting on the Ninth Circuit law, the trade name holder in the N.C.P. Marketing Group event disputed that under trademark act the defaulter could neither assign nor assume the non-transferable trademark permit at issue. This was agreed by the district court, stating that the bankruptcy court rightly allowed the trademark holder’s action to induce the debtor to decline the trademark permit, compelling the debtor to renounce its license rights.
For trademark owners, this judgment is good news. A lot of people have been apprehensive that if a licensee declares bankruptcy, it could use the Bankruptcy Code’s universal authority to assume and assign executory agreements to consign trademark permits to third parties over the trademark holder’s disapproval. The decision of the N.C.P. Marketing Group extends to trademark holders insurance already acknowledged by various courts for copyright and patent owners. The instance does not state whether the same law would be applicable for special trademark licenses. However, known that the trademark holder has analogous rights and responsibilities to supervise the quality of products traded under a certified mark, the upshots could be the same.
For trademark licensees declaring bankruptcy, the judgment is, certainly, bad news. In case the decision is trailed by other courts, trademark licensees declaring bankruptcy shall be powerless to give their rights to third parties or to retain those authorities for themselves without the consent of the trademark holder. The merit of these debtors, as well as their capability to pay off creditors, could suffer too.
If you have additional questions please contact us by filling out the contact form or giving us a call at 206-682-7975.
Some debtors need to file bankruptcy due to no fault of their own. These individuals usually have suffered some kind of enormous medical expense or maybe their home is severely under water. For others, such as the athletes profiled in ESPN’s new 30for30 documentary “Broke” need to file for bankruptcy because they had a really good time living outside of their means, with nothing saved up for a rainy day. The documentary profiles athletes who were at the top of their game and then lost/spent all their money, only to be living a very pedestrian lifestyle in this day and age. What viewers and readers need to realize is that most athletes professional careers only last on average 3-4 years, and most don’t make superstar money. Athletes have a short time frame to make serious money before having to get a real job outside of sports. Many athletes fall into the trap of spending all of their hard earned paychecks because they are young and are often times from under privileged backgrounds and have no concept of saving money, because they never had any money to begin with. Often times athletes help out their friends and families with bad investments and then they go on to blow a substantial amount of money on cars and bars to name just a few of the bad choices.
So what can we learn from these athletes as well as various lottery winners and entertainers? Be smart with your money. If you got it, invest in things that will show you a profit, unlike vehicles, alcohol, and zany start up business. Go with what works and get professional investment advise before making any substantial decisions, and always live within your means. You don’t want to have to file for bankruptcy because you charged up your cards trying to keep up with what everybody else around you was doing. If you have made bad investments or end up going late on your credit card payments which end up hurting your credit or you end up getting sued by a debt collector, you can either hire help or seek out legal help online to represent yourself. Either way the worst thing somebody can do is nothing, so consumers and athletes need to take action and get help if they are in need.
Prior to becoming a Seattle trademark lawyer, I was preparing myself to start working at a sports agency and picked up the book “Winning with Integrity” by Leigh Steinberg. The book gives a great glimpse into the world of sports agents and the business of sports. What it left out however was how Mr. Steinberg was an alcoholic and took loans from clients and other creditors in order to support his lavish lifestyle. Mr. Steinberg was known for his amazing parties, especially during the week of the Super Bowl. Granted, some of these parties were to help support charities, but Mr. Steinberg simply borrowed more than he could pay back which is a common theme among people who file for bankruptcy. Mr. Steinberg just did it on a larger level.
According to Mr. Steinberg’s chapter 7 bankruptcy filing as reported by ESPN it appears as though he may have a tough time discharging a debt owed to a former client of his since a judgment was already entered against him for $900,000 plus interest. The former player/client, Chad Morton, plans filing an adversary proceeding against Steinberg to obtain a judgement in the bankruptcy court stating that this debt will not be dischargeable due to allegations that Steinberg made fraudulent conveyances to avoid paying off the debt. Debts that are are owed to creditors and that were incurred due to fraud or involve fraudulent conveyances will not be dischargeable. It’s funny that a man who once wrote a book entitled “Winning With Integrity” seems to have been lacking integrity for some time. Steinberg alleges that the debt owed to the former player was not authorized by him, but rather his company. However, as the owner of the company he should have been aware of who his business was borrowing from.
This story just goes to show you that anybody can find themselves filing for bankruptcy, even those that have had a tremendous amount of success in the past.
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Whenever a business or individual enters into a contract for goods or services it is a good idea to make sure you get all of the terms of the agreement reduced to writing. As a Seattle entertainment lawyer, I understand this can sometimes be a tough feat to accomplish as a lot of deals can be made on the fly or over drinks. But I must strongly advise that after your meeting or phone conversation that you reduce the terms of your agreement to writing to avoid any possible pitfalls later. The reason I bring this up at this time is because I am currently assisting an executive producer of a film in dealing with another movie producer who is no longer a part of the project.
I will not divulge any information on this dispute other than to say the parties do not agree as to the terms of their original agreement, there was no signed contract and there is also a dispute as to whether the movie producer actually received the actual screenplay at all. Needless to say a written and signed a agreement would have been useful to avoid a dispute down the road if parties don’t see eye to eye which happens more often than you would think. Several parties to a project may come in go during the creative process so make sure everybody understands what they are entitled to from the outset. An oral contract may be enforceable, however it will be harder to prove certain details unless there are witnesses or an email trail. If there was no contract in place, a party may have an unjust enrichment argument if they provided time and services to a project. In which case they should be compensated for their time, but should not receive any kind of ownership interest in the project unless the can argue that they are a joint author in the creative work.
Further in relation to distributing a movie screen play, an author or executive producer should keep a log of who the work is discussed with and number and keep track of every screen play sent out and when it was returned. This is to prove a party had access to the screen play later if necessary to prove copyright infringement. An infringement claim requires access, an original copyright as well as similarity to your original work of authorship. As an added layer of protection, the producer should have parties sign non disclosure agreements stating that the parties agree not to distribute the works of art to any non approved parties.
If you have additional questions please fill out the contact form to schedule an initial consultation today.
If you are an up and coming band and think you have the best band name in the world, you should first conduct a simple Google search to make sure that you are not going to be infringing on another bands trademark. If a band with a similar name shows up you may want to search the USPTO data base to make sure the bands name is not trademarked or consult with a trademark lawyer. If the name is not trademarked the band who was using the name first in their location will have the right to use the name there, however if you were to register a trademark thereafter, you would have the right to use the band name nationally and stop others in the future from using the band name.
The reason I bring this up is that I was recently retained by a band who has been performing since the 1990’s. They were smart and trademarked their band name in relation to musical performances. This means that any band who wishes to use their band name or any variations of the name which are confusingly similar will be infringing on the original bands trademark.
The point of a trademark is for a business or in this case a band to distinguish themselves from the competition. If you are a new band, would you really want your work to be confused with somebody else’s? My guess is that most artists would want to be considered an original and not ride the coattails of somebody else or have their work confused with somebody else’s. So if you want to avoid receiving cease and desist letters threatening legal action in the future I strongly suggest doing a thorough name search before settling on a band name. It would be a hassle and potentially costly to re-branding yourself under a new band name if you have already been performing and have developed a fan base who purchases music and merchandise which could no longer be sold.
If you have additional questions please call us as 206-682-7975 to set up a consultation with one of our entertainment lawyers.
The Supreme Court declined to review a lower court case and therefore agreed with the ruling in the lower court that the downloading of music is not a crime that can be punished under copyright infringement. To check out the details about the case you should read this article by the AP. In order for an individual to be liable for copyright infringement they must have broadcast the music publicly. The Supreme Court agreed that downloading music on a personal computer did not constitute a public performance and thus could not be grounds for copyright infringement.
This ruling will likely cost musicians dearly as ASCAP, the organization who licenses musicians music, will not be able to license out music that is illegally downloaded on PC’s for private use. Consumers who illegally download music will not have to worry about facing potential charges of copyright infringement in the future.
If you have additional questions please fill out the contact form to schedule an initial consultation today.