Warning: Spoiler Ahead
Earlier this month, NBC’s ProFootballTalk revealed that the NFL team uniforms featured in Dwayne “The Rock” Johnson’s upcoming HBO show “Ballers” are used without the consent of the league.
HBO’s reply to the story, and Business Insider, was that “HBO is always mindful of other intellectual property owners, but in this context there is no legal requirement to obtain their consent.”
It turns out that is 100% true, according to a prominent entertainment lawyer.
After speaking to entertainment lawyer Michael C. Donaldson, who has over 30 years of experience in copyright and entertainment issues, BI learned that as long as the use of the NFL trademark and team logos are used as it was intended to be used, and do not disparage or tarnish it, there is no need to ask for permission.
“[The NFL] brow beat a lot of people into paying fees that don’t have to be paid,” Donaldson told BI. “They extract those fees from filmmakers who are either nervous or not completely aware of their rights under the law.”
Donaldson gives this example in how to understand trademark law:
“It’s alright to say, ‘This Coca-Cola takes 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 causes the confusion, according to Donaldson, is what goes on at the networks. Because they air NFL games they have broadcast rights. You may notice the disclaimer during games that say in part, “…any pictures, descriptions, or accounts of the game without the NFL’s consent is prohibited.”
“So people think, ‘Oh, the networks pay for the use of logos, obviously I have to,” Donaldson said.
That is completely different from trademark rights.
In the opening scene of “Ballers” we see Johnson’s character, Spencer Strassmore, having flashbacks from his days on the gridiron as a Miami Dolphin. He’s wearing a Dolphin’s uniform with its logo in plain view. He’s chasing down a Buffalo Bill quarterback, his helmet logo also clearly visible.
Donaldson said what the show is depicting is completely legal.
According to Donaldson’s partner at his practice, Chris Perez, the show can go even further and the NFL could still not have a case.
“One thing that we can say for sure about players in the NFL in the last few years is that fights happen on the field every so often and then they get broken up by referees or coaches,” said Perez. “Players have engaged in domestic violence and then convicted of that, and NFL players have committed murder. So you can create a show that uses NFL logos and create a fiction situation where all of those things happen.”
Later in that episode, the show does depict a player in a negative light. Star receiver for the Green Bay Packers, Ricky Jarret (John David Washington), gets into an altercation with another man at a night club and beats him to the ground in front of everyone.
Though the NFL won’t like that scene, Perez says the show is within its right to have a scene like that.
“Where you can get into trouble,” Perez said, “is portraying how the NFL reacts to it. The response has to be consistent to how the NFL would react in real life.”
According to Donaldson, if there were a scene where someone playing the NFL commissioner held a press conference saying that the NFL wants their players to get into fights at bars, the show would “get into big trouble.”
Jarret’s actions in the episode do not go unpunished. Following the altercation he is cut from the team (with the Packers logo in full view, we see the GM say “cut him.”).
The NFL had “no comment” for this story.
“Ballers” premieres on HBO on Sunday, June 21.
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