Sports Merchandizing, Publicity Rights, and the Missing Role of the Sports Fan

Abstract

Sports fans play a tremendously important role in the success and popularity of sports teams and the enterprise of sports in general. It is somewhat curious, then, that fan interests are almost entirely missing from discussions about certain important legal issues that have a direct impact on them. Specifically, fan interests play a surprisingly limited role in discussions about sports team merchandising and player rights of publicity. This Article argues that modern sports licensing practices are coming into increasing conflict with the interests of sports fans, and that the law should take greater account of such interests. This Article starts by discussing the relatively weak legal foundation upon which modern licensing practices are based. It then draws on the expanding literature on fan interests in the field of copyright to show how the foundation is even weaker in the context of sports. It concludes by arguing for far more limited recognition of the intellectual property rights of sports franchises, leagues, and players.