Last updated 25 October 2021.
Intellectual property is generally concerned with creating rights over things such as literature, music, ideas, art and images. Unlike rights over other property, such as cars or houses, intellectual property is a little more complex because the ‘thing’ for which the property right exists is intangible. One of the main areas of intellectual property is copyright which is regulated by the Copyright Act 1968 (Cth).
Copyright exists in the physical media (e.g. a television broadcast of a sporting event). Once a broadcaster (e.g. a TV station) obtains the right to broadcast a sporting event, then the exclusive right to record the broadcast (on video, audio cassette or as a digital file on the internet), sell the record, transmit the signal interstate or internationally, or to re-broadcast generally lies with the broadcaster, who in effect buys that right from the organisation that owns or runs the event (see Copyright and Moral Rights chapter).
Trade marks are another form of intellectual property governed by the Trade Marks Act 1995 (Cth). A trade mark is generally a letter, word, name, signature or other form of sign that is used to distinguish goods or services. The use of trade marks is particularly relevant in professional sport, where teams and leagues have trade marks over names and logos, or an athlete might seek to trade mark something distinguishing about themselves (e.g. a nickname), which they wish to use in marketing a product. Before a person or company can use a trade mark or declare it to be intellectual property capable of attracting rights, it must be registered as a trade mark pursuant to the legislation mentioned above. Such a trade mark should not mislead or deceive people as to who it refers to, and the trade mark should not be used where it gives the wrong impression that a sportsperson or sporting organisation endorses the product associated with the trade mark.
Finally, it should be mentioned that athletes (or anyone) do not have intellectual property rights in their own images (i.e. to prevent someone from taking a photograph or video recording of them). However, a broadcaster or company cannot use the image or name of a famous sportsperson in a way that gives a misleading impression that the athlete is connected in some way to a certain product or endorses it. This is potentially actionable under the civil wrong of ‘passing off’, or via consumer protection statutes for ‘misleading or deceptive conduct’ (see Consumers and Contracts chapter). The use of endorsements (where well-known sportspeople endorse a particular product) can be a powerful commercial tool for prudent sportspeople and organisations, however, it must be properly agreed upon through contractual means.