Ever wonder how the Home Box Office (“HBO”) is able to use the National Football League’s (“NFL”) teams, logos, and colors without the NFL’s explicit permission?
Anyone who watches football can recall that just before the game is about to start you hear “Any other use of this telecast or any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.” Based on the NFL copyright broadcast warning, it might come as a surprise to learn that the show Ballers does not have the consent of the NFL.
Ballers depicts Dwayne “The Rock” Johnson as a retired NFL superstar who tries to find success off the field as a financial manager for current and former NFL players. The show frequently shows NFL team uniforms and logos without the consent of the NFL.
HBO’s response is that they are always mindful of other intellectual property owners, but, in the context of the show, there is no legal requirement to obtain their consent. As long as the NFL trademark and team logos are used in a way they were intended to be used, and do not disparage or tarnish the NFL, it is not required to get their permission. In a Business Insider article about Ballers, entertainment lawyer Michael C. Donaldson explains it this way:
“It’s alright to say, ‘This Coca-Cola tastes awful.’ You can say, “I hate Coca-Cola.” What you can’t say is something that misrepresents it, such as you drink a Coke and you drop dead and someone says, ‘That happens all the time.'”
What most likely causes this confusion is that certain networks have broadcasts rights to the games, which is where the disclaimer comes from. It would seem that if the networks have to pay for the use of the logos, so should HBO, but that is not the case with trademark rights (in contrast to copyright).
In other words, depicting The Rock laying out a Buffalo Bills quarterback with a clean tackle while playing defensive end for the Miami Dolphins is essentially considered to be fair use within the realm of trademarks. The logo and uniforms are being used as they were intended—worn by players competing during a NFL game. The show also illustrates players getting in fights at clubs or committing certain crimes. Based on this, it is entirely possible to create a show that uses NFL logos and create a fictional situation where all of those things happen. But it is important to note that during these types of controversial scenes none of the actors are wearing a uniform or any other sort of team apparel.
Where HBO could get in trouble is how they portray the NFL themselves. For instance, the show cannot inaccurately portray how the NFL would react to certain player situations. Their response should be somewhat consistent to how the NFL would react to a similar situation in real life. For instance, one of the show’s main character’s, Ricky Jerret, gets in an altercation with another man at a nightclub. Following this altercation, the actor playing the Green Bay Packer’s General Manager, with the Packers logo in full view, cuts Jerret from the team. Under trademark law, this scene depicts something that would actually happen: The front office of an NFL team cutting a player whose character becomes an issue.
As long as the logos aren’t being used with something unrealistic or insultingly outrageous, the show is not breaking any intellectual property laws and does not need “the expressed written consent of the National Football League.”
[This article was prepared and written by Ashley Winslow, our intellectual property rookie.]