Author: Gavin Law Offices

Name, Image, Likeness in College Sports

Posted on by Gavin Law Offices

Last month marked a long-awaited policy change for many college athletes.  Under new rules issued by the National Collegiate Athletic Association (NCAA), student-athletes may now financially benefit from their name, image, and likeness (NIL). Additionally, new legislation became effective in several U.S. states on July 1, 2021. The shift follows years of legal proceedings and public pressure to grant student-athletes access to a larger portion of the billions of dollars generated each year by college sports.  While many students and entrepreneurs alike are celebrating the lucrative financial opportunities sure to follow, some still question the best way to navigate and protect all parties involved.

NIL Basics & NCAA Policy Change

Name, image, and likeness, (sometimes referred to as “NIL” for short), are all tied to the overarching legal concept of “right of publicity.”  Essentially, this right refers to an individual’s ability to capitalize on, and be compensated through third-party endorsements, for their NIL.  NCAA athletes are now able to make money from a variety of business ventures that were previously prohibited.  For example, the new rules allow athletes to profit from endorsement and advertising deals, as well as from their social media accounts, making public appearances or speaking engagements, teaching sports lessons, signing autographs, performing music, or starting their own businesses.

Policymakers, faculty, students, and businesses are working through the evolving landscape of NIL opportunities under the new NCAA rules. While the NCAA policy stipulates that students may participate in NIL opportunities consistent with the state law where their school is located, only certain states, including Florida, Georgia, and Alabama, have enacted laws regulating NIL.  Specifically, the new NCAA rule does not override relevant state NIL laws, colleges’ and universities’ specific NIL rules, or conferences’ NIL policies.

College athletes should therefore review NIL rules in the state where their school is located. That way they can work with their athletic departments to understand any school and/or conference-specific rules and restrictions.  Students competing for colleges/universities in states without an NIL law may initially have more freedom until additional guidance or laws are enacted. Further, smaller schools may not have the same ability as larger university to properly advise students on NIL opportunities and risks.

What now?

While students will have new opportunities to capitalize on their NIL, it is important for both students and the businesses working with them to understand any laws or policies that may impact their transactions. Many state laws and school/conference policies prohibit athletes from endorsing alcohol and tobacco products.  Several state laws and school/conference policies also prohibit athletes from using their school’s trademarks or other copyright material in endorsements, or do not allow athletes to sign deals that conflict with their school’s sponsorship agreements. For example, a football player on a team sponsored by Adidas may not be allowed to wear another brand of shoes, such as Nike or the student’s own brand, during games.

Numerous college athletes have already taken advantage of the new rules by signing major endorsement deals with national brands such as Smoothie King and Boost Mobile.  Students at local universities and colleges in Richmond are eager to take advantage of these opportunities as well. Along with that there is certainly room for smaller businesses to become involved with college athletes.[1]

For students considering entering into a new contract to profit from their NIL, staying well-informed is a must.

State laws and NCAA rules allow college athletes to hire professional help in the form of lawyers, agents, and tax professionals.  It is important that businesses consult with legal professionals when entering deals with students as well.  Attorneys can help students protect their own NIL and intellectual property, such as trademarks and copyrights they are using to make a profit.  Legal professionals can help both students and businesses understand the complex laws and rules that are in place regarding student-athletes’ NIL.  Importantly, understanding the laws and policies can help students and businesses avoid infringing others’, including colleges and universities, intellectual property rights.

We are continually monitoring and keeping up to date with changes in intellectual property and business legislation. If you have any questions about NIL protections and how it may affect you, contact us today. – Courtney Reigel, Esq. & Lily Taggart

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

[1] VCU, UR enter ‘evolving area’ of name, image, likeness benefits for athletes | College Sports | richmond.com

Colorado Privacy Act signed into law: Are more state data privacy laws on the horizon?

Posted on by Gavin Law Offices

Courtney, an Associate Attorney at Gavin Law Offices, recently returned from an exciting trip to Colorado.  Her trip came soon after Governor Jared Polis signed the Colorado Privacy Act (or “CPA”) into law on July 8, 2021.  With Polis’s signature, Colorado officially became the third state behind California and Virginia to enact a comprehensive data privacy law.

The CPA is set to take effect on July 1, 2023, just months after the Virginia Consumer Data Protection Act (“CDPA” or “VCDPA”) and the California Privacy Rights Act (“CPRA”) become effective on January 1, 2023.

While the three laws share many similarities, important differences exist amongst them as well (for example, the Colorado Privacy Act does not appear to exempt non-profits, which are largely excluded from the requirements the CPRA and CDPA plan to impose on covered businesses).  Businesses will likely struggle to understand their compliance obligations as new state data privacy laws continue to be passed across the United States. These obligations include varying terminology and definitions, exemptions, and requirements under the patchwork of state laws that apply to them.

Attorney Courtney Reigel surveys the land of Colorado just as she surveys the landscape of Colorado Data Privacy legislation

In addition to the new California, Virginia, and now Colorado laws, several other states such as Pennsylvania, North Carolina, South Carolina, and New York are currently considering legislation related to data privacy and protection.  A question many industry groups, businesses (and their attorneys), and consumers are asking is whether the state data privacy laws will continue, or if a federal data privacy law will be passed in the near future.  Further, could a federal law aim to pre-empt the existing numerous state data privacy laws we have just seen get passed?  While a comprehensive federal data privacy bill has not been seriously considered yet by Congress, U.S. Senator Kirsten Gillibrand introduced the “new and improved” Data Protection Act of 2021 last month.[1]

We will continue to track state data privacy laws, as well as the new federal data privacy legislation, and look forward to updating you regarding the same.

– Courtney Reigel, Esq.

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

[1] https://www.gillibrand.senate.gov/news/press/release/gillibrand-introduces-new-and-improved-consumer-watchdog-agency-to-give-americans-control-over-their-data

Social Media and Your Intellectual Property

Posted on by Gavin Law Offices

Popular social media services such as Facebook and Instagram have billions of active users. In addition to allowing companies to share their personality and brand values, online platforms also function as impressive e-commerce marketplaces. This provides an opportunity for businesses to reach an impressive number of users. However, when individuals or businesses use social media, they may not be considering the following issues related to intellectual property:

  • Trademark infringement
  • Copyright Infringement
  • Rights of Publicity/Right of Privacy
  • Licenses to the social media service (i.e., Instagram, Facebook, etc.)

In terms of infringement (whether trademark or copyright), there are two scenarios you may encounter on social media. One involves someone infringing your own intellectual property rights and the other occurs when you infringe a third parties’ rights, whether intentionally or not. There are often several layers of intellectual property involved in a social media post. Common examples include music, photographs, videos, artwork, and brand names and logos. Understanding intellectual property ownership can be complicated, and it is best that you consult with an attorney to protect your work and avoid infringing anyone else’s as well.

Additionally, users of certain media services such as Instagram grant the platform a non-exclusive license to any material they post. Many users are not aware that they are agreeing to such a license when they consent to Instagram’s terms of use and start posting on the platform.

Further, using someone’s image or likeness online without their permission could implicate rights of publicity and/or privacy laws. Being aware of these intellectual property issues on social media is a helpful first step. Your business’s social media presence is an important part of your brand that deserves legal protection. Additionally, avoiding actions that infringe other’s intellectual property rights can help prevent financial and reputational harm. We can assist you with your legal concerns regarding you and/or your business’s online presence.

– Courtney Reigel, Esq. and Lily Taggart

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)

 

Women in Food Networking Social

Posted on by Gavin Law Offices

Rina and Elizabeth had a great time at The Savory Grain thanks to CreativeMktGroup and their partners, Real Local RVA, By Jacqui Photography, and The Apple Cart. The Women in Food Networking Social was a hit and it’s been amazing to re-connect with the Richmond business community. We can’t wait for more fun events this summer!

Richmond business owners with Gavin Law attorneys Rina Van Orden and Elizabeth Sewell

 

Protecting Your Business’s Various Assets

Posted on by Gavin Law Offices

Businesses today have more types of informational assets than they may initially realize.  These assets include company data, intellectual property, confidential information, and personally identifiable information.  While these categories are related, and in many cases overlap (for example, client lists, know-how, etc.), businesses should consider important distinctions between such assets that require different handling and protections.  These issues are particularly relevant in relationships between your business and a third party, for example:

  • Employee and independent contractor agreements that address access and use of such assets
  • Contracts with vendors (such as creative, technology, and manufacturing providers)
  • Business arrangements such as joint venture, investor, and profit-sharing agreements
  • Policies and agreements addressing privacy and data security

To ensure your assets are properly protected, your business needs written documents that clearly address ownership of each type of asset, and the rights and obligations of each party.  Our goal is to help your business obtain the desired outcome in any given relationship, and we can help you carefully consider how to treat certain types of information/assets and recognize aspects that may require they are handled differently.

Company Data

During the course of business, you may share certain company data with vendors, business partners, etc., that does not necessarily fall under the definition of PII, Confidential Information, or Intellectual Property.  However, it is important that businesses still protect such data, and we can assist by ensuring that language addressing your business’s ownership of company data, the retention and return/deletion of such data, etc., is included in all relevant contracts.  If your company follows a data management policy that mentions security and retention of data, that policy may be something you ask third parties you contract with/that you will be sharing data with to follow as well.  Including an overarching term for your company’s data/assets can help ensure that any information not otherwise defined does not slip through the cracks.

Intellectual Property

Intellectual Property generally refers to a company’s patents, trademarks, copyrights, and trade secrets.  Intellectual Property is a huge value to a business and should be treated by companies as a distinct asset whereby ownership, liability, and indemnity of the same is carefully considered when entering into agreements with third parties.  Businesses may wish to clearly address Intellectual Property in any internal data management and security policies as well.

Confidential Information

The term “Confidential Information” broadly refers to a business’s proprietary information and is commonly defined in agreements.  However, many contractual provisions covering parties’ treatment of Confidential Information are bilateral, meaning that the same obligations are placed on both parties to the agreement.  Thus, companies should be aware of the responsibilities they are agreeing to take on regarding their treatment of the other party’s Confidential Information.  An attorney can also assist you with drafting contractual language that addresses unintended disclosures of Confidential Information.

Personally Identifiable Information (PII)

Several U.S. states have enacted data privacy laws that place requirements on covered businesses regarding their treatment of consumers’ PII.  Further, all U.S. states have passed some type of legislation that addresses data breaches involving PII.  Because PII is becoming more and more regulated, businesses should ensure that their internal data management/security programs, as well as their contracts with third parties, clearly define PII and set out requirements regarding the treatment of this type of information.  Best practices also require that businesses protect consumers’ PII via reasonable security measures considering the nature of the information.

 

The different types of data and assets mentioned above all provide unique value, but also present discrete threats to your company if not treated distinctly and properly.  We recommend having an attorney draft or review your business’s contracts with third parties to ensure that your assets are properly considered and protected, and that you have minimized legal risks as much as reasonably possible.

– Rina Van Orden, Esq. and Courtney Reigel, Esq.

 

(This is not intended as legal advice. Contact a lawyer for assistance in your particular situation.)