The rapid technological advancements in artificial intelligence are reshaping numerous industries, with sports and athlete branding emerging as a potential area of transformation. However, burgeoning AI technology raises compelling legal and intellectual property issues for athletes, law practitioners, and other stakeholders.
Traditionally, professional athletes have been able to commercialize and protect their name and brand. More recently, since the U.S. Supreme Court’s June 2021 ruling in NCAA v. Alston, even amateur collegiate athletes have increasingly benefitted from this same concept, after gaining the ability to monetize their name, image, and likeness (NIL).
Now with the advent of powerful consumer AI tools, all athletes have the means to use their brand and likenesses to generate new revenue streams. Examining past experiences in licensing likeness can shed light on these opportunities and concerns.
AI will
Consider the music industry. In April, artists Drake and The Weeknd suddenly had a new hit collab titled “Heart on My Sleeve.” The song had hundreds of thousands of streams on Spotify and Apple Music. But, as it turned out, the song was an AI-created knockoff. Neither of the artists had actually recorded the music.
In response Universal Music Group, the record label for the artists, swiftly moved to have the song removed from major streaming platforms, and went a step further, asking the platforms to prevent AI companies from using their catalog to train generative AI tools. However, another artist, Grimes, moved to “open-source” her voice using AI tools, allowing fans to share 50% of the royalties generated using her newly created GrimesAI-1 voice generation platform.
A recent television commercial featuring an AI-generated young Charles Barkley demonstrates another potential use of AI-created content in advertising. Sports betting company FanDuel created an authorized version of a young Charles Barkley in his NBA prime to star in a television ad opposite the present-day retired NBA player-turned-announcer, to hilarious results. Here, the laws that govern the commercial use of an athlete’s likeness could apply, but new stipulations addressing AI applications would be crucial.
Transform
And then consider the video gaming industry, where athletes have licensed their images for use in popular games like FIFA or Madden for decades. Recent AI technology promises to allow gamers to interact with real-time generated avatars with in-game voices and faces that respond to a gamer’s input, such as questions.
Given that we have already seen popular social media personalities which are entirely robotic or virtual, such as Miquela or FNMeka, it is not difficult to imagine interacting in real-time with your favorite athlete, perhaps even in a version of FIFA or Madden in the future.
Generative AI can already help create engaging avatars by simulating an athlete’s tone in social media posts or in interactive chatbots. The possibility of personalized fan engagement through these kinds of AI-generated means could bolster an athlete’s brand in unprecedented ways.
Athlete
This arrangement is potentially beneficial for many in the industry. Gaming companies can release more engrossing games. Gamers could get a more interactive experience of their favorite players, albeit an AI-generated version. Athletes and leagues stand to earn more revenues and establish a more personalized connection with their fans.
However, as athletes enter this new era of branding, they will want to consider the legal implications, looking at the current landscape as a guidepost for licensing AI-generated use cases. For example, the extent to which AI-generated works are protected by US Copyright law, if at all, is now under question, and many open legal questions remain. Such a world would require athletes, teams, leagues, agents, lawyers, and the industry write large to reimagine already complex contractual agreements, necessitating legal adaptations to accommodate AI technologies.
Some bedrock principles still apply. AI’s potential impact on personal branding in sports could potentially be colossal, but athletes must still take a proactive legal approach as build, protect and grow their brand, secure any relevant IP rights, and operate with a wholistic and long-term outlook as they seek to monetize their NIL rights.
Branding
Moreover, it’s crucial to consider potential legal risks or drawbacks to an athlete’s brand. The use of AI technology raises the possibility of diminishing brand value if not properly managed, leading to a watered-down fan experience. As AI tools become more sophisticated, bad actors could create unlicensed deepfakes of athletes, leading to misuse, misrepresentation, or outright fraud. These realities underscore the importance of robust IP laws that are adaptable to technological changes, and that athletes and their advisors know how and when to use legal remedies.
Athlete branding will evolve along with the next generation of AI technology, and so existing IP laws must evolve to address the complex challenges that might arise. While there is no doubt that AI holds exciting prospects for athletes, it also opens a potential Pandora’s box of legal issues. Athletes, alongside their advisors, lawyers, and agents, will need to navigate this uncharted territory with foresight and diligence, ensuring the protection of their likeness in the evolving landscape of AI technology.
This article is for informational purposes only and should not be construed as legal advice. Feel free to reach out to Moish Peltz, Intellectual Property Practice Group Chair at Falcon Rappaport & Berkman LLP, with specific questions at mpeltz@frblaw.com.
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