Gareth Bale and Zlatan Ibrahimovic have recently taken to Twitter to voice concerns over EA Sports' use of their image rights on FIFA video games for many years without having a contractual agreement in place. It is also reported that a number of other players object to their likeness being used and are seeking legal advice. This issue serves as a helpful reminder to sports persons to understand their trade marks and image rights and the complications of licensing or allowing third parties to own them.
Trade marks and image rights
It is not uncommon for sports persons to register trade marks. England striker, Jesse Lingard, registered trade mark protection in his 'J Lingz' goal celebration in time for the 2018 World Cup. Outside of football, Mo Farah's famous 'Mobot' comes to mind.
Image rights do not exist as a standalone right in the UK, but are more like a concept that includes separate rights such as unregistered trade marks and the right to sue for passing off. Image rights are therefore not registered, but are proprietary rights that an individual has, including name, voice, image, physical details and likeness, together with personality characteristics. Cristiano Ronaldo, for example, has a 10 year contract with Nike worth around £14.8 million per year, in exchange for Nike's use of his images on advertisements.
Why can EA Sports use a player's likeness in absence of an agreement with the individual?
The FIFA 21 game uses the likeness of over 7,000 players from 700 teams to create digital avatars of them. EA has a scanning team that ensure the avatars look as 'real' as possible, with the likes of tattoos included on the avatar.
EA Sports said in a statement that is has contracts in place to use the likeness of all players that feature on the game by way of:
- entering into intellectual property licence agreements with teams, leagues and sometimes individual players; and
- working with Fifpro, the International Federation of Professional Footballers, which engages in negotiations on behalf of players in member countries.
In respect of the current dispute, EA Sports stated that it has contracts in place with: (1) Ibrahimovic's club, AC Milan; and (2) the Premier League, which includes all players for Tottenham Hotspur, who Bale is currently on loan to. Whilst Bale and Ibrahimovic may have not granted EA Sports a licence personally, it is likely that the respective clubs and leagues have, and have a right to do so under employment or league playing contracts.
Players that belong to Brazilian clubs have not featured on the game since FIFA 15. Club logos and strips are still present, but the players are generic. The reason for this is twofold: Brazil is not a member of Fifpro and even if it was, the protection of image rights in Brazil would require EA Sports to have a separate contract in place with each individual player, giving their personal, express and unambiguous consent to use the image.
It's not just about the game, it’s a business, and the commercialisation of intellectual property rights is a great revenue stream for both teams and individual players through endorsements, sponsorship and licensing.
Player contracts typically ensure the individual players grant the club a licence or an assignment to use his/her image rights in both a personal and club capacity. This may be achieved in the employment contract, but some of the top players have separate image rights contracts. There are seldom examples of a sports person refusing to grant their club such a licence.
Leagues, such as the Premier League, further complicate matters as the league itself may have some limited control and exploitation of players' images in a club capacity.
Clearly there can be complications and not everyone gets it right. The key message to individuals is to understand your image rights and the contract you are entering into to avoid confusion or disappointment at a later date.