Intellectual Property Rights in Basketball

Article excerpt

1. Introduction

1.1 Background

Traditionally, "intellectual property" connotes a legal system of protection of immaterial goods that have significant economic importance: it refers to the result of human creativity and imagination such as, for example, artistic and literary works, the industrial inventions and the trademarks. Intellectual property rights (IPR) influence three dimensions of a community: socio-cultural, economical and environmental. Copyright and Image Rights particularly affect the cultural/artistic process, to the point that they can influence freedom of expression. Patents and Trademarks become such an integrated part of the product and of the industrial/commercial processes that they regulate significant and economically relevant aspects (production, use and circulation).

Intellectual Property can be divided into two categories: Industrial Property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and gives the copyright holder the exclusive right to control reproduction or adaptation of such works, for a certain period of time. A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor, for a certain period of time.

Trademark is a distinctive sign, which is used to distinguish products or services of different businesses.

In this work, we will analyze the specific role of intellectual property rights regulation in sports industry. Of course, American legal system can be defined as the true forerunner of marketing applied to sport. In particular, the absolutely innovative legal review on celebrities' image rights established by American law represented a significant turning point, which has significantly influenced European experience. In addition, legal practices such as licensing and merchandising have constituted for several decades a fundamental component of sports law in USA and, therefore, they have a high level of sophistication and complexity that are not found in other jurisdictions (1)1.

The analysis will continue pointing out some peculiarities of basketball context and, in this regard, the experience of English and Italian systems is not fully developed, because within these countries, this sport, even if extensively played, does not have a great commercial impact and, therefore, ip rights infringements very rarely occur. Consequently, this paper will focus on the American experience, where basketball has a great market and the Courts have stated important principles on ip rights.

1.2 The Importance of IP Rights in Sports

IPR are generally important in business and, in particular, in sports business. They have a value and importance on their own, and also as marketing tools. Branding of sports, sports events, sports clubs and teams, through the application and commercialisation of distinctive marks and logos, is a marketing phenomenon that, in the last 20 years, has led to a new lucrative global business of sports marketing (2).

A growing part of the economic value of sport is linked to intellectual property rights. In an increasingly globalised and dynamic sector, the effective enforcement of intellectual property rights around the world is becoming an essential part of the health of sports economy. Use and exploitation of intellectual property (IP) in a sports business context are, in themselves, unremarkable. IPR within sport have become an extremely important asset, as for many modern commercial businesses. …