Business

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

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.)

 

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.)

Earth Day 2021: Protect the Earth, Protect Your Work

Posted on by Gavin Law Offices

The first Earth Day took place in 1970, with organized groups in Los Angeles, Chicago, and many other American cities. Founded by Wisconsin Senator Gaylord Nelson, this now global event helped launch the modern environmental activism movement. Over the past 51 years the focus has grown from generating environmental awareness to spurring action for our natural resources. An early proponent of environmental care, Nelson paved the way for the widespread environmental protection measures that we see today.

Branding Sustainably

On almost any store shelf, there are trademarked goods related to Earth Day causes. There are several brands that dedicate their mission to being environmentally conscious. Patagonia and Seventh Generation are great examples of these types of brands. Interestingly, there are also a variety of protected labels, certifications, and other groups that promote sustainability.

Business and Planet

For instance, the movement “1% For the Planet” is a protected mark. The entity behind the mark works to connect businesses and environmental nonprofits to bring awareness and funding to protect natural resources. The name originates from businesses’ commitment to give 1% of gross sales each year to support the partner nonprofits. Many of these businesses are then able to use the 1% For the Planet mark to help strengthen their identity as an environmentally caring brand. The model is a win-win for business and the planet! Another example is Sustainable Forestry Initiative. The organization certifies sustainable foresting practices, which include biodiversity programs, water use measures, and forest health. Products such as paper bags and lumber use the protected mark.

Reforestation

Lastly, a popular nonprofit engaging with several businesses around the world is One Tree Planted. With a focus on global reforestation, the group makes partnership opportunities easy with different models centered on planting trees. Businesses can adopt the “One for One” where a chosen action, such as product sold, represents a tree. Individuals, teachers, and students, can also participate in tree planting opportunities on a smaller level. One Tree Planted is an internationally recognized organization with a large list of dedicated partners. Reforestation efforts significantly protect air, water, and climate, as well as improve social and health related concerns. One Tree Planted’s trademarked text and design represents their dedication to reforestation. Moreover, the mark’s placement on partnered organizations signifies a concrete promise to dedicate time and resources to planting trees.

“Greenwashing”: How does it affect me?

The increase of “green” and environmentally conscious protected intellectual property has gone hand-in-hand with the rise of the practice known as greenwashing. This is often seen when brands make misleading or false claims that their product or service is eco-friendly. Greenwashing is not only questionable from an environmental protection perspective, but it has grown into a major consumer protection concern. The U.S. Trademark Office has increasingly refused to grant registration to “green” trademarks. Marks like these originally faced hurdles to registration based on descriptiveness grounds but more recently are facing refusal on the basis of deceptiveness.  These objections can be especially difficult to overcome when applicants do not fully think these issues through in the initial filing strategy for a trademark application.

When it comes to deceptiveness considerations, brands can refer to the FTC’s Green Guides. Titled “Guides For The Use Of Environmental Marketing Claims” in 1992, the updated versions provide guidelines on how to market environmental claims and how to “avoid consumer deception” [Federal Trade Commission, 75 Fed. Reg. 63,552 (Oct. 15, 2010) (codified at 16 C.F.R. pt. 260)]. Over the past several years, the issues of greenwashing and ethical environmental marketing claims have grown into a substantial topic within the intellectual property community. Brand owners must always be aware of any possible sustainable implications in their mark and communicate to consumers properly. More importantly, those seeking environmental claims should be prepared to provide substantiation of any environmental claims that their marks and/or branding imply.

2020 marked an impressive fifty years of Earth Day. Each year it becomes even more imperative to include sustainability in our lives. Whether through economic partnerships or individual lifestyles, we hope to continue protecting and enjoying our great earth.

– Rina Van Orden, Esq. & Lily Taggart

IP Strategies for Your Online Business

Posted on by Gavin Law Offices

Transitioning into an online business may feel daunting. From operations to technology, there are so many potentially new processes. Business owners currently operating online can also benefit from a review of their operations and how they can best protect their work. Don’t let your intellectual property strategy hinder your success! Here are five perspectives of what you need to consider when engaging online:

Advertising and Marketing 

  1. Marketing your product or service is an integral part of any business, especially when operating online. Creating an advertising strategy that abides by legal guidelines may sound confusing but there are a few easy tips.
  2. Firstly, make sure that all claims are truthful and substantiated. If you’re selling socks, don’t say that they can fix a broken bone.
  3. Don’t forget that this also applies to social media. Not only you and/or your business, but anyone you may work with such as content influencers, with must adhere to these rules.

Trademarks

  1. Select a strong name and/or logo for your business. What is a strong name? A good rule of thumb is, if it describes what you’re selling, it’s probably not distinct enough.
  2. Make sure you take steps to decrease the likelihood of infringement. Before committing to a name to use commercially, consult with a legal team to search existing marks and assess potential risks.
  3. Will you conduct business in multiple countries? Keep up to date with individual country’s trademark requirements so you understand how to file.
  4. Lastly, make sure to review your contracts to be aware of which rights you have and which rights you are granting. You cannot grant any rights that you don’t have! If you need help deciphering a contract, reach out.

Copyright

  1. Is there content that you use on your website, social media, or mobile apps? Make sure you know whether you can use media like music, text, photos, art, video, or other content in various ways- personally, commercially, within whatever geographic restrictions. Additionally, follow “proper credit and/or attribution” requirements for the content.
  2. Are third-parties able to post content on your website? You may want to limit your liability against their potential copyright infringement by taking advantage of the Digital Millennium Copyright Act (DMCA)’s Safe Harbor. Let us know if you need help navigating these requirements.
  3. Is there a person whose name, likeness, or image you are using in connection with your business? There are right of publicity laws that you must follow as well as applicable state laws.
  4. An online entrepreneurs’ website is like their online storefront. Do you have a clear agreement with your website or software developer? Make sure any other tools created for the operation of your business, like mobile apps, are included in your strategy. A well-written contract is a good way to take preventative measures before the work is done to avoid later infringement or theft.

Privacy and Other Legal Considerations

  1. Be in the know when it comes to changing data privacy and internet laws. Specific state laws may apply to your business even if you are not physically located there.
  2. The California Consumer Privacy Act (CCPA) and Californica Public Records Act (CPRA) grants California residents greater control over their personal data and how businesses use that information. If you want to prepare your businesses for CPRA compliance, start by reviewing how your company collects data, and then contact a professional about how to make sure everything is above board and complies with the new laws.
  3. Virginia recently passed similar legislation known as the Consumer Data Privacy Act (CDPA). There are some differences compared to California’s legislation such as which businesses apply to the regulations.
  4. Finally, set up your online presence to comply with other regulations such as the Americans with Disability Act (ADA). For example, make online offerings available to those with disabilities. Other important legislation includes the Children’s Online Privacy Protection Act (COPPA) and the Communications Decency Act (CDA).

Protection Strategies

  1. Last but certainly not least, educate yourself and pursue all routes to protect your content.
  2. Seeking registration with the Copyright Office and/or the USPTO is a great first step in protecting your business and intellectual property.
  3. Another strategy which helps to prevent improper use is to include notices on your website, social media, and /or mobile applications.
  4. If you are concerned about improper use, explore all monitoring tools and consult with your legal team.

Whether you already conduct business online or not, the internet is here to stay. It’s become an invaluable economic resource, especially with the need for remote options in the past year. As such a fast and accessible way to work, make sure you take into account all your legal and commercial options as an intellectual property owner.

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