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Can I Legally Write & Record a Hit Record Using the Name of A Baseball Player without Permission Right of Publicity

Discussion in 'Copyright, Trademark, Patent Law' started by hifi, Sep 7, 2019.

  1. hifi

    hifi Law Topic Starter New Member

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    Jurisdiction:
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    Can I Legally Write & Record a Hit Record Using the Name of A Baseball Player without Permission ahead of time? I have this idea for a record using the name of a current baseball player in the title and lyrics. Do I need to get his permission before or after it is recorded or am I violating his right to publicity or anything else? If it became a hit, yeah I'd give him a percentage. The fact is I am too small time to seek his permission before recording, Thanks for your input
     
  2. adjusterjack

    adjusterjack Super Moderator

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    You don't need permission to write and record it but you do need permission before you ever let it see the light of day.

    Without written permission you'll get sued and lose any money you make off the record and then some.
     
  3. Tax Counsel

    Tax Counsel Well-Known Member

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    Everyone has a right of publicity in their own name and image. If you distribute a song using the name of a famous baseball player you are potentially infringing on his right of publicity. He may sue you for that. Even if he does not win, your cost to defend could be quite expensive.

    Also, if what you say about the player in the song is defamatory, the player may sue you for that as well.

    Before you distribute the song, you really ought to have an intellectual property lawyer review it and advise you whether you will infringe on the rights of the player or defame the player and what risks you run in getting sued if you don't get the player's permission.
     
  4. army judge

    army judge Super Moderator

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    Yes, nothing prohibits anyone from writing whatever trips their fancy.

    If you record it EXCLUSIVELY for your use, entertainment, and pleasure how would "Benny Baseball" ever know?

    Distributing your recording, performing your recording, selling copies of your recording; would likely cause you to be sued.

    You're very wise in recognizing your limitations.

    I suspect you are also smart enough to know that you should consult a lawyer before you seek to commercialize your song writing/recording talents.
     
  5. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    As a practical matter, if the name is readily identifiable as a famous baseball player and your songs are about baseball, one can assume that the player's attorneys will find a relevant statute that applies to your situation to make it difficult and expensive for you regardless of whether they have legal protection. A primary question in trademark law is whether a name has secondary meaning attached to it. But as others pointed out, there may be other legal rights that the player may have, including rights of publicity.

    Using a name like "Babe Ruth" or some other readily identifiable or relatively unusual name will likely attract an expensive situation for you. If you write a song about how much you loved going to the ballpark and mentioned a name of a favorite player, that is different. But it seems that you explicitly want to attract attention and promote your product / music through the use of the player's name. Such a strategy probably doesn't bode well for you.

    Going forward first and then offering some money later is probably not going to work out well. Famous / accomplished personalities care greatly about protecting their brands. Look at Drew Brees and Tim Tebow who have an explicit association with Christianity. Brand owners certainly want to know what is being done with their brand and by whom and certainly before any use enters the marketplace. Throwing the famous player or celebrity some additional income if your song turns out to be a hit probably will not be flattering.
     
  6. zddoodah

    zddoodah Well-Known Member

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    Probably. Impossible to be certain without having specifics.

    Unlikely, but it's impossible to be certain without knowing which state's laws govern his right of publicity.

    That's awfully vague, but again, unlikely.

    Why? The current average annual salary of a Major League Baseball player is in excess of $4 million, so it's no like he needs the money.

    Why do you think this?

    Not if the player's lawyer has any comprehension of the law. And, depending on the applicable right of publicity law, the OP could be entitled to recover attorneys' fees for the successful defense of the frivolous lawsuit.

    Those who aren't familiar with this area of law may want to look at a couple right of publicity statutes and read about the Rosa Parks v. Outkast lawsuit (among many others). Might also want to read some song lyrics because famous persons are mentioned in popular music all the time (esp. in rap/hip-hop songs), and permission rarely sought. Someone even put together a list of "best raps about basketball players." The oldest example I can think of is "Mrs. Robinson" by Simon & Garfunkel, which makes reference to Joe DiMaggio, and it's well-documented that S&G didn't seek permission.
     
  7. Michael Wechsler

    Michael Wechsler Administrator Staff Member

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    That's an interesting case, which ultimately was settled after it appeared Park lost at trial and on appeal for a $5 BILLION lawsuit against Outkast. An interest excerpt from a an article which covered the Rosa Parks v. Outkast lawsuit.

    Mrs. Parks has no children. Her 13 nieces and nephews, her closest relatives, argue that Ms. Parks, who lived a humble, frugal life, would never have sued for money.

    They accuse her lawyer, Gregory Reed, and her caretaker, Elaine Steele, of exploiting their ailing aunt for private gain. Mr. Reed denies this; Ms. Steele declined to comment.
     

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