AUSTRALIA Law and Practice Contributed by: Sven Burchartz and Jessica Bell, Kalus Kenny Intelex
maintained a position that their designs were substan - tially different from the photograph, they ultimately withdrew the products from the market. 5.3 Recognising Personality/Image Rights Australia does not recognise a legal right to an ath - lete’s image or NIL rights. Instead, protection arises indirectly through common law actions, such as pass - ing off, and statutory regimes, including the Australian Consumer Law and intellectual property laws. Accord - ingly, a number of traditional causes of action are relied upon to protect a celebrity’s image, including: • the tort of passing off; • breach of Australian Consumer Law; • defamation; or • trade mark and copyright infringement. 5.4 Protecting Personality/Image Rights Passing off is a common law tort in Australia that aris - es where a party misrepresents an association with another’s goods or services. Alongside this, the Aus - tralian Consumer Law prohibits misleading or decep - tive conduct. In practice, these protections can be used to prevent unauthorised suggestions that an ath - lete has endorsed, sponsored or is commercially asso - ciated with a product or service. To establish passing off, an athlete must show a recognisable reputation, a misrepresentation, and a likelihood of resulting dam - age. The Australian Consumer Law similarly protects against unauthorised use of an athlete’s name, image or persona that implies approval or affiliation. 5.5 Licensing Sports bodies and athletes can exploit their IP rights to leverage the value of their brands and generate rev - enue by licensing those rights to third parties. These licensing rights might include the right to apply a reg - istered or unregistered trade mark to goods, services or other advertising materials. The scope of licensing differs significantly between sporting codes and professional and non–professional sport. At the professional level, leagues and teams commercialise a range of intellectual property through licensing programs that cover: • merchandise;
• apparel; • games; • content; • statistics; and • sponsorship activations.
Professional athletes may also license their personal branding (ie, their name, signature, likeness or image) for endorsements and commercial partnerships. In contrast, non-professional sporting bodies typically have a limited intellectual property portfolio, which results in limited licensing for local sponsorships and small-scale merchandising. 5.6 Assignment of IP Rights In Australia, intellectual property can generally be assigned with few restrictions, but assignments of copyright and other IP (including trade marks, patents and designs) must be in writing by deed or agreement to be enforceable. An author’s moral rights cannot be assigned and may only be waived. Unregistered trade marks may only be assigned together with the good - will of the relevant business, and collective marks can - not be assigned. Confidential information and trade secrets may be assigned only while they remain con - fidential. Assignments of registered IP should also be recorded with IP Australia to ensure enforceability In Australia, sports data, including athlete, equipment and spectator data, is predominantly used by stake - holders to track athlete performance, increase fan engagement and encourage and expand commercial partnerships. Athlete Performance against third parties. 5.7 Data in Sport Many of Australia’s elite sports teams collect and ana - lyse athlete data to identify strengths and weaknesses in any given athlete or a team’s performance. Analyt - ics can help athletes and teams understand the key factors that contributed to their wins or losses, and inform training plans, strategy and athlete develop - ment. In the AFL, for example, clubs have developed their own data management systems and dedicated teams
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