[SOUND] Welcome back. We have my good friend, Ron Katz, from the Santa Clara Sports Law and Ethics Institute. Ron, welcome back. >> Thank you. >> Okay, this time, we're going to talk about your great success in the Adderley case, we're going to talk about publicity rights. We'd like to have an update on the Jim Brown case, our students will be studying that in one of the modules, publicity rights and the expansion the same as it relates to video games. You were kind enough to come out and present at our symposium last year, going all the way back to the great Zadkine case, which our students will have read. And Haylen Labs and our rights of publicity attended there on, but let's pick back up with O'Bannon and amateurism and some of your comments about how maybe to fix that publicity rights, name image likeness misappropriation that now EA has settled with our intercollegiate athletes. Maybe start with that comment on the O'Bannon EA settlement, and we can go from there. >> Well, I think you have to take a historical perspective on this. I mean, the right of publicity has a very distinguished beginning back in 1890. It came from a law review article written by a person who became Justice Brandeis. And then intellectually, it was very well accepted for many years. But there wasn't much money to be had, one way or the other, with publicity rights. It wasn't until the digitization came into being in a major way, where you could have games like the Madden game where 70 million people play a year. These rights became very, very valuable. But you had a mismatch between the technology, which is very high tech, and the law, which was very low tech. Because the main law on the subject, there was only one Supreme Court case, the Zadkine case, which involved the human cannonball in the 1970s at the Ohio State Fair. So, obviously, that's not really very applicable to a modern day situation. You have another problem, also, in the modern day, and that is that the main defense to right of publicity is First Amendment, and of course, the First Amendment is something that's very strong in our tradition. So, what has to be done by the courts is they have to balance the First Amendment against the right of publicity. So for example, if you want to write an unauthorized biography of Jim Brown, you have a First Amendment right to do that. I don't think Jim Brown can stop you from doing that. But if you want to put Jim Brown in a video game that has no expressive content whatsoever in my opinion and make money off his image that he worked years and years to develop and practiced thousands of hours and not pay him anything and not get his permission, then I think you have a different case. And that's what's happened now in the O'Bannon case, that the courts are starting to recognize that the defendants, like Electronic Arts or the NFL Players Association or Major League Baseball or whatever, they can't just invoke the First Amendment. They can't just say the words First Amendment and win the case. Because if that were so, then we wouldn't have a right of publicity. And in fact, First Amendment does not guarantee absolute free speech, you'll fire in a crowded theater, you can't make a joke in a security line in an airport, and you can't infringe somebody else’s copyright, you can't somebody else’s trademark. All of those things have to do with the First Amendment. And I would say that there are no greater infringers of the First Amendment than intellectual property lawyers. Because intellectual property lawyers are always trying to restrict people's right of free speech by defending people's right of copyright, trademark, etc. And so, the right of publicity should be up there with all those other rights. But the problem is, it's very difficult to define. It's very difficult to draw the line. So, one man's right of publicity is another man's First Amendment, and that's what the courts are working out right now. And ultimately, one of these cases will work its way up to the US Supreme Court, and we'll have a better case than the human cannonball case to guide us. But right now, we're sort of in that uncertain time, where if a client comes into your office and asks you for advice on right of publicity, you really have to do a lot of on the one hand this, and on the other hand that. >> [LAUGH] But, Professor Katz, isn't the creation of O'Bannon and making him sort of a different smudged figure, or Jim Brown, in your famous Jim Brown case, isn't that transformative, isn't that expressive? Isn't the creation of the video game sufficiently expressive and transformative? They ought to be entitled to express themselves that way, EA should, through those wonderful video games. That's a leading question. >> Right, but that's the main defense. And it really has been demolished by the courts because they say Mr. O'Bannon is just doing what he did. He played basketball, he's doing it in the context in which he did it, which is in a basketball court. And there's nothing at all transformative, and saying that by creating a digital background or crowd noise, or whatever, that that transforms Mr O'Bannon is not true. If we just focus on Mr O'Bannon, he's not transformed at all. In fact, it's your purpose not to transform him. Nobody wants to see Ed O'Bannon cooking an omelette. >> [LAUGH] >> They only want to see him playing basketball. Nobody's going to portray him in a video game cooking an omelette, because it's just not interesting. >> Does the predominant use test help? The predominant use of putting Ed in that, and that would, of course, tilt the balance in favor of Ed. Predominant use is, right, it's commercial speech because I want you to pick that product because Ed's in it. I mean, does that help tilt the balance in favor of the celebrity? >> Well, there's only one case that has used that test, and that's the Supreme Court of Missouri, which is not one of our leading courts, I don't think, and it's not a bad test. It's probably as good as transformative. But the problem is, that these tests are very objective, they're more like Rorschach tests than they are like legal tests. And you might look at the same image. In the case that used the predominant use case, it was a hockey enforcer, and they portrayed him as a mafioso. >> Right. >> So I think you could look at it and say, well, I think the produce is commercial, and I could look at it and say no, no, that's transformative, I think the predominant use is artistic. >> Artistic. >> So the courts have not given us a stance, they just say the phrase predominant use, but they don't give us 17 factors that we can use to determine that. >> Let's go all the way back to the Adelaide case, your multimillion dollar victory. What was the pivot point in that? You were kind enough to share that with me last time you were here in Cleveland. So let's celebrate that, what was the pivot point there, as far as you were concerned? >> Well, I think there were a couple of things. One is that the Union, or the defendant, was the NFL PA, which is the Players' Union. They paid the active players for their publicity rights. They didn't pay the retired players, so that's an acknowledgement that the publicity rights have value. And a second thing they did was certainly a smoking gun, was that they scrambled the images of the retired players. They didn't use their names, they didn't use their correct numbers. Although the gamer, the person playing the game, can actually insert the correct number and the name. But again, they don't want to transform these people too much. So if you say you want to be the Cleveland Browns in 1965, you want to play that vintage team and be that vintage team. And here's the full back, and the full back is six foot two and 228 pounds and he's going to be your lead in nine years, and he has the top ability ready, well, it can only be Jim Brown. It really cannot be the 1965 clinical on Browns unless it's Jim Brown because he was the heart and soul of a team. So the combination of the acknowledgement that the rights had value and the smoking gun, I think, really made that an easy case. >> Yeah, and at the end of the day, you'll have to take us through putting Herb on the stand and getting him through deposition as a Hall of Famer, one of the greatest defensive backs I've ever seen playing. What was his testimony that really Jeff Kessler had such a hard time with.representing the PA as your adversary? >> Right, well, I think that Herb was an all pro, who was a Hall of Fame defensive back. But that doesn't mean that he's going to be a good witness in a courtroom. That's not really what he was trained for. It was very difficult for him. He had a very difficult deposition. Because in a deposition, as you know, there's not a judge there and there can be a lot of harassment, and it's very hard to stop the harassment. And that actually boomeranged against Mr. Kessler because he tried to use that at the trial, but in trial, it's a different situation. You've got a judge there, you've got a jury there. Herb Batterly is a very sympathetic figure. He's elderly, African American man, he walks with a cane. And the idea of seeing a privileged, middle aged white lawyers trying to beat up on this guy, who didn't do anything, I mean, let's face it, all he did was sign a contract and trust this Union and not get paid. >> Right. [LAUGH] >> So, I am a great believer in jury trials. I think the truth comes out, and I think that Herb did a great job putting a face for the jury on these 2,000 players that had suffered the same fate that he did, which is they signed up for this ballyhooed program. And they never got paid one penny in 16 years. >> Yeah, I guess I'm getting and I'm trying to lead the witness here. The jersey, you're holding up the jersey while he was on the stand with his name on it, if I'm remembering right. >> Right, they had claimed, he was very angry. Because as a Hall of Famer, he had a special deal, and that had to do with the sale of his jersey through one of the sports memorabilia companies. And he would always get these jerseys in the mail, even though he had played many, many years before, he still gets about 50 requests a week for autographs. So, somebody had sent him one of these jerseys to autograph while I was representing him. And he called me up and he said, well, I got this jersey, I mean, obviously they sold it. He said, but nobody told me they sold it, nobody paid me for this. It has big name Adderley on the back. So I said, well, keep that jersey. Send the fan another autograph and ask him if you can pay him for the jersey, and we'll keep that. >> [LAUGH] >> So, the cross examiner, Mr. Kessler, was making a big deal out of that jersey. He said, it must have been a counterfeit jersey, or it must have been this, that, or the other thing. But I happened to have the jersey with me in court. I was able to bring it out, and I was looking at in front of the jury, and of course, there's Adderley on the back. And Mr. Kessler's back was to me, so he didn't really see that. It was quite humorous. And then, the judge, one of his associates came up to him and informed him of what happened. And he was outrageous, and he said that shouldn't happen. He complained to the judge. And the judge said, well, Mr. Katz, why do you have this? I said, well, I'm going to do re-cross examination on him, or re-direct examination, on this jersey. And I just had a hunch that we would be hearing about it, so the judge looked at Mr Kessler, he said, well, he had a hunch, you know? So then after the trial, here's the end of the story, which is sort of funny, after the trial, you go back at a certain point, and you get all your exhibits. After the appeals are all over and everything else, you get your exhibits back. So we went back to get our exhibits, and we got back every single exhibit, except that one somehow went missing. >> [LAUGH] Let's Rob third and head on, Jim Brown, Lana Mac, how's Lana Mac different from right of publicity, especially in the California law? Just quickly, they have a study guide on this, our class does. But just, the different variations on that same right of publicity theme as it relates to the Jim Brown case that you've been handling. >> Yeah, well, Jim Brown, he doesn't really care what theory we went on. He just wants to get money. So but it did become judicially legally important whether the theory was trademarked or right of publicity. And again, this is always balanced against the First Amendment. So in its wisdom, the Ninth Circuit Court of Appeals decided that you could vindicate a right of publicity claim, but not a trademark claim, unless it was explicitly misleading. And of course, for it to be explicitly misleading, you'd have to say something like Jim Brown approves this when he doesn't approve it. And of course, you wouldn't say that. So I think that the irony of this decision is that trademark law really infringes less on the First Amendment than right of publicity law does. Because all you have to prove for right of publicity is that they used the image, and they didn't have your permission, and they made money off of it. For trademark, you have to prove something additional, which is there was confusion in the market. But so in my opinion, that infringes less on the First Amendment than right of publicity, but as you may notice, I'm not wearing judicial robes here. So that's what the Ninth Circuit has decided, and until a higher court decides something else, that's the law of the Ninth Circuit. >> Let's finish all the way back to Alban and Professor Katz, please. So, you appeared before the Knight Commission, you've published articles in Forbes, most recently about the whole concept of amateurism. I think your ideas should be adopted post-haste. But let's please just share with our audience the pre-professional stage is something we also look at in the scores. What would be the diagnosis for, really, the disease that infects major college sports right now? >> Well, it's interesting because very few institutions are actually affected. You have the Power Five conferences, which is 65 schools, and they're really the only ones that make any money. And they only make money off two sports, which is football and men's basketball. In the NCAA, you have over 1,100 other schools, who, like Santa Clara, they don't make money. They're just amateurs, they're doing it for the love of the game. They're not going to be professionals for the most part, I mean, now and again, there is one, but the professionals mostly come from the Power Five. And the Power Five are generating these humongous TV contracts, billions of dollars. So, that has become professional, I mean, there's just no way that anyone can persuasively say that this enterprise is entertainment enterprise, which generates billions of dollars, is amateurism. And if you say well, it's amateurism because we don't pay the performers, that's not amateurism, that's just exploitation. So, I think the solution is, first of all, to just separate out those 65 schools. They have different situations from the other 1,100 schools. And let them make as much money as they want, let them pay their players, which, I think, ultimately it will come to. But that doesn't affect the other 1,100, and I think the other 1,100 need to come to a more simple age. I think, for one thing, they should stop using the phrase student athlete, which apparently was only made up in order to prevent workers' compensation claims. I don't think there should be anything special about athletes. If someone wants to be an athlete in college, I think that's great and they should participate. But they shouldn't be in a special category, they shouldn't get special privileges, and the word student athlete implies that that's going to happen. We don't call people in the band student musicians, we don't call chemistry majors student chemists. So I think to get rid of that, sort of just, even though it's a cosmetic change, I think it does change the focus to where it should be, which is after all, these are educational institutions. The focus should be on education. >> Would you- >> And then I think you could, if you eliminate that, the NCAA has a 391 page rule book. Most of the rules affect academic things, like who's eligible to play, who's eligible to get into college. The schools don't need this from the NCAA, the schools have their own standards. They're the experts, and when the NCAA has standards, it sets up a double standard. Well, I think the standard should just be whatever the standard is at that school. If you can play with a 2.8 grade point average at that school, that's fine. That school sets the regulations. And the third change I think is, of course, we'll have much fewer disputes once we get rid of these academic regulations, which are completely unnecessary. But the dispute should be decided, not by NCAA members themselves, who have conflicts of interest because they're basically sitting in judgment on schools that compete with them, but they should be decided by retired judges. And in fact, the NCAA commission, a committee in 1991, which included the former Chief Justice of the United States and the former Solicitor General of the United States, very distinguished people, and then his recommendation in 1991. But regrettably, it has been ignored. >> Yeah, last question, Ron, so all the way back to Jeff Kessler, this famous Kessler free agency case, so in the super five conferences, top 65 schools, should it be whatever the market will bear, essentially free agency, go to the school that will sort of pay you the most? >> I really think that that's what it's going, it's professional right now. I cant think of any other word for a multi-billion dollar enterprise than professional. And I don't know of any other professional endeavors, where they don't pay the workers. Slavery was abolished in 1865. >> [LAUGH] What a great answer. Okay, we want to thank Professor Katz again from the Santa Clara Sports Law and Ethics Institute. We can't thank you enough, Ron. We'll be back to you, hopefully 140 countries plus will view this and realize what I have, that you're one of the true experts in the field today. And I really appreciate your being with us today. >> It's always a pleasure, Peter, thanks. [SOUND]
