In this week’s episode of The Briefing by the IP Law BlogScott Hervey and Josh Escovedo discuss the NCAA’s decision to petition a trademark held by a Urology office due to its alleged likeness to its own trademarks, ‘March Mayhem’ and ‘March Madness.’
Continue Reading NCAA Erects Challenge to ‘Vasectomy Mayhem’ Trademark

At last, the NCAA has changed its policy on college athletes monetizing their name, image, and likeness, also known as their NIL. Who cares if the Supreme Court forced the NCAA’s hands in Alston v. NCAA, which didn’t directly address the issue but provided clear indicia that the Court intended to deal with the issue eventually? What matters is that college athletes can finally market their valuable NIL and enrich themselves while the NCAA is enriching itself during their college careers. But, of course, no benefit comes without its risks.
Continue Reading Pitfalls Related to NCAA’s New Policy on Name, Image and Likeness

By: Scott Hervey

Every practitioner should teach law school at least once. This year I am teaching Entertainment Law at the University of California at Davis. (Although flying up from and back to L.A. once a week can be a bit of a drag, so far it is a good experience.) Finding issues to trigger discussion and debate in class is forcing me to look at cases much differently. Since I already know the general holdings of the cases I am teaching, I find myself spending more time analyzing the dissenting opinion and loosing party’s position, looking for points that can foster robust in-class discussion. This week, in preparing for a class session on right of publicity, I re-read the recent 9th Circuit case of Keller v. Electronic Arts and found myself questioning whether the courts have changed the Transformative Use test set forth by the California Supreme Court and used to analyze a conflict between right of publicity and First Amendment protected speech.

The facts of Keller are straight forward. Electronic Arts produced an NCAA Football series of video games which allowed users to control avatars representing college football players and participate in simulated football games. In NCAA Football, EA replicated each school’s entire team as accurately as possible and every football player avatar had a jersey number and virtually identical height, weight, build, skin tone, hair color and home state as each real life player. EA’s player avatars reflect all of the real life attributes of the NCAA players; the only exception is that EA omitted the real life player’s name from the corresponding avatar and assigned the avatar a hometown that is different from the real player’s hometown.


Continue Reading Did The California Court Of Appeals Transform The Transformative Use Test in Right of Publicity Cases?