Sport Law Exam #7
4 factors determining fair use
1.The purpose and the character of use(Is it for commercial or educational purposes?) 2.The nature of the copyrighted work 3.The amount and substantiality of the material used in comparison with the whole 4.The effect of the use on the potential market or value of the work
In determining whether there is a hostile environment, the courts will use a three-step approach:
1.The totality of the circumstances 2.Whether a reasonable person in the same or similar circumstance would find the conduct sufficiently severe or pervasive to create an intimidating, hostile or abusive work environment (objective test) 3.Whether the plaintiff perceived the environment to be hostile or abusive (subjective test).
What was the first state to pass legislation regulating agents?
California -Californai athlete agents act in 1918
Laches (statue of limitations)
In circumstances where the mark holder has neglected to make a timely assertion of its trademark right, this lapse of time may bar a right to relief, where to grant such would cause prejudice to an adverse party.
The Title IX
No person in the US shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving federal financial assistance.
Title VII: illegal for employers to refuse to
to hire or deprive individuals their status as an employee due to these classifications
Purpose of trademark law
to protect the owner of a mark and to prevent others from using the mark in a way that will cause consumer confusion.
Trademark owner must be the first to
use the mark in trade and make continuous, uninterrupted use
The NCAA has no control over sports agents. Therefore, an agent can
violate NCAA rules without fear of NCAA sanctions.
Disability means three things
¤A physical or mental impairment that substantially limits one or more of the major life activities of such individual; ¤A record of such impairment; Being regarded as having such an impairment
What 5 legal areas are most relevant to employment discrimination?
¤Equal Pay Act of 1963 ¤Title VII of the Civil Rights Act of 1964 ¤Title IX of the Education Amendments Act of 1972 ¤Pregnancy Discrimination Act of 1978 ¤Lilly Ledbetter Fair Pay Act of 2009
3 basic elements of title IX
1) Gender discrimination 2) federal funding 3) educational program
Dilution can occur in two forms
1) blurring 2) tarnishment
Inherently distinctive
1."arbitrary or fanciful" and "suggestive" marks
The NCCUSL began to draft the Uniform Athlete Agent Act in
1997
The fundamental physical difference between men and women
is the ability to bear children, and childbearing as well as childrearing responsibilities have contributed to bias against women in hiring, promotion, and salaries.
Satisfaction of any of the three standards
lifts a school into participation compliance
Generic
primarily denotes a product, and not the product's producer. It does not receive trademark protection.
This three pronged test has been
upheld by the supremem court
¨Because sexual attraction may play a role in the day-to-day social exchange between employees, the distinction between the following 4 may be difficult to discern.
¤Invited ¤Uninvited-but-welcome ¤Offensive-but-tolerated ¤Flatly rejected sexual advances
5 defenses to trademark infringement
¨Abandonment ¨Disparaging Marks ¨Laches ¨Fair Use or Parody ¨Disclaimers
Reasonable accommodation
-An employer must make reasonable accommodations for their workers with disabilities. -Employers only need to do so if providing the reasonable accommodations does not result in Undue Hardship
The most high profile case involving athletes' right of publicity today involves
-Ed O'Bannon, a former basketball player who was a starter on UCLA's 1995 National Championship team -¨O'Bannon asserted that his Right of Publicity was violated because his image/likeness was used in an Electronic Arts ("EA") video game without his permission. Although the game didn't use his name, it featured a UCLA player who played O'Bannon's power forward position, while also matching his height, weight, bald head, skin tone, jersey number, and left-handed shot
Potential problems
1) music and performance (variations of the original work) 2) public performance restrictions (illegal recording for reproduction?) 3) TV and radio broadcasting (illegal recording for reproduction) 4) internet (mass distribution with little policing)
There is no EPA violation if the reason for unequal pay is due to three affirmative defenses
1) seniority system 2) merit system 3) any other factor based on something other than sex
When the inventor is granted a patent these 3 things are true
1) the US patent will be issued in the name of the United States under the seal of the Patent & Trademark Office 2) It will be signed by the Commissioner of Patents & Trademarks 3) The patent contains a grant to the patentee.
Under section 1127 a mark is deemed abandoned when:
1. When its use has been discontinued with intent not to resume such use; 2.when any course of conduct of the owner causes the mark to become the generic name for the goods or services on or in connection with which it is used or otherwise to lose its significance as a mark
In determining whether two jobs are substantially equal the courts have developed a two step analysis
1.Do the jobs have a 'common core' of tasks, i.e., is a significant portion of the two jobs identical. 2.If so, the employer must show that the reason for the unequal pay falls within one of the EPA's three affirmative defenses.
4 functions of a trademark
1.Identifies a seller's goods and distinguishes them from those sold by others, 2.Signifies that goods come from one particular source, 3.Indicates that products are of a certain quality, and 4.Advertises, promotes and assists in selling the particular goods
8 categories of copy right protection
1.Literary works 2.Musical works 3.Dramatic works (plays, theatre) 4.Pantomime and choreographic works (dance set to music) 5.Pictorial, graphic and sculptural works 6.Motion pictures and other audiovisual works 7.Sound recordings 8.Architectural works
Two pronged analysis under the lanham to see if there is a trademark infringement
1.The trademark owner must show that she has a protectable property right in the trademark. 2.The trademark owner must show that the other party's use of a similar mark is likely to cause confusion, mistake, or deceive consumers as to who is the true source of the mark.
What are the two pieces of a disclaimer?
1.alerting consumers that the product or service does not contain certain attributes or features, and ● 2.that it is not from a certain source organization.
Secondary meaning
1.the mark has become primarily indicative of the source of goods or services, rather than the goods or services themselves
Unfair competition
is almost universally regarded as a question of whether the defendant is "passing off" his goods or services as those of the plaintiff by virtue of substantial similarity between the two, leading to confusion by potential customers.
Quid pro quo harassment covers all
tangible employment actions, defined as any significant change in employment status, such as retention/firing, promotion, demotion, or reassignment.
While male coach/female athlete is not the only context in which sexual harassment occurs, it is significantly greater
than any other combination
The protction clause of the 15th amendment guarentees
that no state actor, whether at the federal, state or local level can classify people and treat them differently based on those classifications without having a defensible reason
Federal trademark dilution act of 1995
the Act defines dilution as the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of either the presence or absence of competition between the parties, or a likelihood of confusion, mistake, or deception. ¨
The most recent effort to regulate sport agents
the National Conference of Commissioners on Uniform State Laws (UCCUSL), attempt to persuade the state legislatures of all 50 states to adopt the Uniform Athlete Agent Act (UAAA).
Schools may choose any of three options for satisfying title IX's participation compoment that include
the controversial proportionality gauge
The American Bar Association's code of professional responsibility regulates
the integrity and conduct of all lawyers problem: no control of non lawyer agents
What is the name of the office responsible for the enforcement of title IX?
the office of civil rights (OCR) within the department of education
Trademark definition
¨Any word, name, symbol, or device, or any combination thereof, adopted or used by some entity to identify their goods and distinguish them from those manufactured or sold by others.
Equal pay act of 1963
¨Prohibits employers from discriminating on the basis of sex between employees at the same establishment who perform equal work in equivalent positions under similar working conditions.
Abandonment
¨Trademark rights can be renewed continuously through registration, but a trademark owner must still actively use the mark for it to remain valid.
Employer
"a person engaged in an industry affecting commerce who has 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person"
The NCAA manual states
"an individual shall be ineligible for participation in an intercollegiate sport if they have agreed to be represented by an agent for the purpose of marketing their athletics ability ... in that sport."
Many areas where discirmination is prohibited
- Elections - Housing - Federally Funded Programs - Education - Employment - Public Facilities and Accommodations
¨In the United States, women earn about __cents for each dollar that a man earns for the same job.
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¨Trademark Infringement of Penn State Mascot Logo Texas High School Gets Mauled by Penn State
June 21 2010
Fair use or parody
Section 1115(b)(4) of the Lanham Act provides that where a trademark is used fairly and in good faith only to describe the goods or services involved, there is no trademark infringement.
Disclaimers
The Infringer May be able to Avoid Liability for Infringement if They Conspicuously Place a Disclaimer
Peer to Peer Sexual Harassment
The institution is responsible for peer or third-party harassment if the institution knew or reasonably should have known of the harassment and failed to take prompt and effective action.
Types of Sexual Harassment
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature
The Civil Rights Act of 1964
a comprehensive federal law prohibiting discrimination in many areas
A merit system
a system that measures earning by quality or quantity of production
Affirmative action
action is the practice of giving preference to individuals under-represented in the work place to rectify past discrimination.
Fair use
allows those who did not create the work, the right to use it with permission from the creator
Trademarks
are not officially registered; instead they can be marked with the trademark symbol™
As of 2009, 41 states have passed legislation regulating
athletic agents -each state law differs slightly
Trademarks are then good for the lifetime of the creator and could be perceived as
indefinitely if registration is continuously renewed
By paying some form of compensation the company that receives the license (the licensee)
can then use the trademark of the licensor to sell its own products
Pregnancy Discrimination Act of 1978
combats that discriminatory reasoning by prohibiting employers from negatively impacting employment or benefits on the basis of pregnancy and childbirth.
The Key Issue and the Second Prong of Trademark Infringement Is
consumer confusion
Although the number of female athletes has increased dramatically over the past 40 years, the number of female coaches has
decreased
The selection of sports and level of competition must
effective accommodate the interests and abilities of members of both sex
Recreation programs are also under the jurisdiction of title IX as long as
elements of federal money, allegation of sex discrimination and education program are met
Federal registration is not required to
establish common law trademark rights nor is it required to begin using a trademark
The problem with NCAA regulations are that they only apply to
students and instituations
In an attempt to curb illegal and unethical conduct by some sports agents there has been a
push for more legislation to help protect athletes from agents
Title VII of the civil rights at of 1964 makes it unlawful to discirminate on the basis of
race, color, religion, gender or national origin in any employment activity.
Image rights
relates to a person's name or likeness, such as photograph or other visual representation of the person.
Equal Employment Opportunity Commission
responsible for the administration of Title VII.
Due to shortcomings of the states laws the US congress passed the
ports Agent Responsibility and Trust Act (SPARTA).
IX of the educational amendments of 1972 is the landmark legislation that bans
sex discrimination in schools, whether it be in academics or athletics
Title IX of the education act of 1972
prohibits discrimination on the basis of sex by any educational institution receiving federal funds. (example: sexual harassment)
The patent grant confers
"the right to exclude others from making, using, offering for sale or selling the invention throughout the United States or importing the invention into the United States" and its territories and possessions for which the term of the patent shall be 20 years from the date on which the application for the patent was filed in the United States
What does reasonable accommodation mean?
-Making Existing Facilities Used by Employees Reasonably Accessible to and Usable by Individuals With Disabilities. Examples: Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters
The protection exists as soon as the work is
-fixed in a tangible form and lasts 28 years, with the right to renew for another 47 years or a total of 75 Years.
Any other factor based on something other than sex
-technical, applied skills, artistic, etc. experience
2 fundamental criteria for copyright protection
-the work must be original -it must be in some tangible form which can be reproduced
3 types of sexual harassment
1) Quid pro quo 2) Tangible employment actions 3) Hostile environment
4 times that affirmative action is legal
1) The discrimination results from a former, systemic program. 2) The program is temporary. 3) The program does not bar the hiring/promoting of non-minorities. 4) The program does not force the employer to hire unqualified workers.
¨Under the Lanham Act trademark strength is divided into three groups:
1) inherently distinctive 2) secondary meaning 3) generic
¨The problem with player-agent certificate programs is that:
1.Most programs do not address the corruption occurring before the athlete signs their first contract. ● 2.They are limited in scope - they do not cover all the services an agents can offer.
¨Courts will focus on any number of the following factors when evaluating whether an ordinary consumer will be confused, including:
1.Strength of the mark 2.Similarity between the marks 3.Similarity between the products and marketing channels used to sell them 4.Likelihood that the trademark owner will expand their use of the mark on future products 5.Evidence of actual confusion 6.Defendant's "good faith" intent in adopting the mark 7.Quality of the defendant's product 8.Sophistication of the consumers
Within a claim under the equal pay act of 1963 the plaintiff must show 2 things
1.That the jobs are substantially equal. The EPA does not require that the jobs in question be identical, only that the jobs are substantially equal. 2.The employer has no affirmative defenses(there are three)
Age Discrimination in Employment Act
prohibits employment discrimination on the basis of age -applies to workers over age of 40
These types of sexual harassment constitute in 3 situations
1.submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment; 2.submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual; or 3.such conduct has the purpose or effect of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment.
To establish a cause of action for a common law misappropriation in these situations an individual must demonstrate the following 4 elements
1.the defendant used the plaintiff's identity; 2.the appropriation of plaintiff's name or likeness provided the defendant some advantage, commercially or otherwise; 3.lack of consent; and 4.resulting injury.
In determining whether an accommodation would impose an undue hardship on a covered entity, factors to be considered include:
1.the nature and cost of the accommodation needed under this act 2.the overall financial resources of the facility or facilities involved in the provision of reasonable accommodation; the number of persons employed at such a facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility
Title VII states that it shall be unlawful employment practice for an employer to do 2 things
1.to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or 2.to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin.
What are the three pieces of the tree pronged test?
1¤Provide athletic participation opportunities that are substantially proportionate to the undergraduate enrollment 2¤Demonstrate a continual expansion of athletic opportunities for the underrepresented sex 3¤Fully accommodate the interests and abilities of the underrepresented sex
Additional factors for undue hardship
3.the overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; the number, type and location of its facilities 4.the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.
Lilly Ledbetter Fair Pay Act of 2009
Act allows victims of pay discrimination to assert their rights under the Equal Pay Act and Title VII for full compensatory and punitive damages.
Civil Rights Act of 1991
Amended the 1964 Civil Rights Act to allow jury trials and compensatory and punitive damages in addition to back pay for intentional discrimination under Title VII.
Qualified individual with a disability
An individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such an individual holds or desires
Title IX of Education Amendment of 1972
provides another viable cause of action for employment discrimination cases in educational institutions.
It is important for trademark owners to protect their trademark by
pursuing all unauthorized uses of their trademark in a timely fashion.
The trademark act of 1946 (The lanham act) governs
The Law of Trademarks, the Registration of Trademarks and the Remedies for Infringement of Registered Trademarks.
Appropriation of An Individual's Name or Likeness
The most common form of appropriation involves the use of a person's name or identity in the advertisement of another's products or services.
Older Workers Benefit Protection Act (OWBPA)
specifically prohibits employers from denying benefits to older workers
ADEA draws its substantive provisions
from Title VII stating that a person cannot be discriminated against on the areas of hiring, firing, compensation, or privileges of employment based on age.
With increases in player salaries there has been a corresponding growth
in the number of agents
Uniform athlete agent act
is a single set of state regulations that will govern sports agents' conduct, was finished and approved by the NCCUSL in 2001
The purpose of copyright
is to protect the work of authors and other creative persons from the unauthorized use of their copyrighted materials and to provide a financial incentive for artists to produce, thereby increasing the number of creative works available in society.
IWU wildcat logo was strikingly similar to
mocton wildcats hockey team
Consumer confusion: when there is absent of a showing of likelihood of confusion there is
not actionable wrong
¨Quid pro quo harassment
occurs when "submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual,"
Hostile environment
occurs when a hostile or offensive workplace environment is created for members of one sex.
Anti-cybersquatting Consumer Protection Act
outlaws the act of registering, with the bad-faith intent to profit, a domain name that is confusingly similar to a registered or unregistered mark or dilutes a famous mark.
The player associations of the major sports leagues regulate the conduct of
player agents
What 11 components does title IX specifically look at?
¤Equipment and supplies ¤Scheduling of games and practice time ¤Travel and per diem allowances ¤Opportunity to receive academic tutoring ¤Opportunity to receive coaching, assignment, and compensation ¤Locker rooms, practice, and competitive facilities ¤Medical and training facilities and services ¤Housing and dining facilities and services ¤Publicity ¤Support services ¤Recruitment of student-athletes.
Title VII specifically prohibits employment discirmination against individuals on the basis of
¤Race ¤Color ¤Religion ¤Sex ¤National Origin
Player association
¤Require members to hire only regulated agents ¤Require teams to negotiate with only regulated agents
¨A number of private organizations are also involved in the regulation of sport agents that include
¤The NCAA ¤Professional Teams ¤American Bar Association
A copyright gives the owner certain rights including these 5
¤The right to reproduction ¤The right to preparation of derivative works ¤The right to public distribution ¤The public performing rights which include live renditions, broadcasts, and retransmissions by cable ¤The right to the public display.
Three sections of the ADA athletic and recreation administrators should be aware of are:
¤Title I - Employment ¤Title II - Public Services ¤Title III - Public Accommodations and Services operated by Private Entities
¨In most sports, the players association requires agents wishing to represent athletes to:
¤Use standard representation agreements ¤Comply with certain limits on compensation ¤Attend periodic training seminars ¤Pay an annual registration and fees ¤Submit to a disciplinary system including an arbitration provision ¤Ban on specific conflict of interest
Title I of the ADA
¨"No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employees' compensation, job Training and other terms, conditions and privileges of employment".
Patent
¨A person can obtain a patent for "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement."
Dilution law
¨Dilution law protects the distinctive quality and selling power of a trademark, even if consumers are not actually confused by a non-trademark owner's use of the mark.
Expansion of Rights
¨Some States, however, have begun to broaden the "traditional meaning of "name and likeness" to include such things as nicknames, drawings, celebrity look-alikes or by including characteristics such as vocal idiosyncrasies within a more general formulation of identity."
Auburn shop sells T-shirt with Notre Dame-inspired Tiger logo
¨The image had been circling the Auburn-centric corners of the Internet nearly from the moment Alabama survived Georgia in the SEC Championship Game, advancing to its upcoming BCS title showdown against Notre Dame: a T-Shirt adaptation of the Fighting Irish's iconic logo to feature an Auburn Tiger instead, showing Tigers fans' support for the Irish in the face of their hated Crimson Tide archrivals. It has christened "Fighting Burnie"
Disparaging Marks
¨Trademark protection can also be denied if a mark is shown to be immoral, deceptive, scandalous, or disparaging under Section 1052(a) of the Lanham Act. (example: Joe Camel cigarette ads)
Copyright
¨a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time, with the intention of enabling the creator of intellectual wealth to get compensated for their work and be able to financially support themselves.
Patent
¨a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, and may be a product or a process. Patents are a form of intellectual property.
Registered trademark symbol
¨designated by the circled capital letter "R", is a symbol used to provide notice that the preceding mark is a trademark or service mark that has been registered with a national trademark office. In some countries it is against the law to use the registered trademark symbol for a mark that is not officially registered in any country.
Title VII of the Civil Rights Act of 1964 makes it unlawful to
¨discriminate on the basis of race, color, religion, gender or national origin in any employment activity.
License
¨license is a permit given by the trademark owner that allows another entity to associate their business and/or product with the name, goodwill, logos, symbols, emblems, and designs of the trademark owner.(wonderful pistachios)
