Here's why Will Smith's new movie 'Concussion' can legally use NFL logos without the league's consent

“Concussion,” out Friday, stars Will Smith as Dr. Bennet Omalu, a Nigerian doctor who discovered the brain disease chronic traumatic encephalopathy, better know as CTE, which has become a hot-button topic related to football in the last few years. More and more players of the game (from professional to recreational) have described having symptoms associated with CTE. In “Concussion,” Dr. Omalu attempts to raise awareness of the disease as the NFL tries to cover it up.

For the sake of authenticity, the movie is filled with shots of boardrooms with the NFL logo and authentic team logos prominently displayed.

It’s obvious the NFL is not outwardly endorsing a movie that shows it attempting to sweep away an issue that could cripple its business. So why is “Concussion” legally allowed to show copyrighted materials without the league’s consent?

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 NFL trademark and team logos are used as they were intended to be used, and their use does not in and of itself disparage or misrepresent the brands, there is no need to ask for permission.

“[The NFL] browbeat 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 all right 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 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 says 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.

But that is completely different from trademark rights.

For example, in this scene in “Concussion,” the NFL logo is prominently shown as a backdrop during a press conference.

But because the logo is used in the way it was intended for that setting, it’s completely legal.

The issue of using NFL copyrighted material also came up earlier this year during the premiere of HBO’s new show, “Ballers,” starring Dwayne “The Rock” Johnson as a former NFL player turned agent. As with “Concussion,” the show uses the NFL logo and team logos throughout.

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 Dolphins uniform with the team’s logo in plain view. He’s chasing down a Buffalo Bills quarterback, whose helmet logo is also clearly visible.

Donaldson said what the show depicts 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,” Perez said. “Players have engaged in domestic violence and then been convicted of that, and NFL players have committed murder. So you can create a show that uses NFL logos and create a fictional situation where all of those things happen.”

Later in that episode, the show does depict a player in a negative light. A fictional star receiver for the Green Bay Packers, Ricky Jarret (John David Washington), gets into an altercation with another man at a nightclub and beats him to the ground in front of everyone.

Ballers12Jeff Daly/HBO/’Ballers’John David Washington as brash receiver Ricky Jarret in ‘Ballers.’

Though the NFL surely doesn’t like that scene, Perez says the show is within its rights to air it.

“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 in which someone playing the NFL commissioner held a press conference and said that the NFL wants players to get into fights at bars, the show would “get into big trouble.” (The NFL had “no comment” for this story.)

Jarret’s actions in the episode do not go unpunished. Following the altercation, with the Packers logo in full view, we see the GM say “cut him.”

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