Perhaps one of Rugby's abiding qualities is that matches, tournaments or even seasons can be encapsulated in one defining moment. Take, for example, the 1974 Barbarians v All Blacks match. Few people can recall who won the game or the exact result but most self respecting rugby fans can recount the celebrated try by Gareth Edwards even if they were born after the event. More recently, Jeremy Guscott's drop goal for the Lions in South Africa and Scott Gibbs' last minute try in the final ever Five Nations game are likely to remain much repeated memories of their respective sporting encounters. Naturally, the demand for popular incidents to be replayed time after time ensures that certain sportsmen and women are remembered long after their professional careers have finished. The media exposure also boosts the earning potential of the featured players who become hotter commercial properties than their less well known colleagues. However, a number of today's sports persons, across a wide variety of sports, are no longer content to reap the indirect financial benefit of their moments of glory or infamy and are seeking direct compensation each time a broadcaster wants to show a piece of footage depicting their performance in the same way that television actors are paid when their programmes are repeated.
Recent press speculation has suggested that soccer's big names are about to register their memorable goals as their own "intellectual property"and has sparked a lively public debate about this issue which had been bubbling for some time. Indeed, if Premiership footballers do reap further rewards it is a fair bet that their counterparts in Rugby will be monitoring the situation closely. Broadcasters and club owners should not get too nervous, however, as it is difficult to see how a player could rely on intellectual property rights to claim a fee each time his try is shown on 'Grandstand' or the 'the Rugby Club'.
If a player's method of kicking a goal involved some revolutionary technique, it is possible that he could seek to obtain a patent for that "technique". However, despite goalkicking going through something of a revolution in recent times with the 'crab like' approach first used by Rob Andrew becoming the norm the realities are that even if a player was able to persuade the patent office to grant him a patent for his new method he could not rely on the patent to prevent a broadcaster transmitting images of him implementing his patent on the pitch. Alternatively, players with well known methods of kicking goals or even celebrating tries might consider registering that movement as a trade mark. However trade marks have to be registered in respect of particular classes of goods or services and it is difficult to see a player persuading the trade mark office to grant him a trade mark for broadcast services as this is not his trade.
Copyright might seem to afford a player his greatest chance of success. Indeed this is the hook on which those advising players to take action appear to be hanging their hopes, arguing the old maxim that "what is worth copying is worth protecting". A player may claim the protection afforded by copyright if he can persuade a court that his performance on the pitch is a dramatic work. It might be possible to argue that a particularly dramatic dive out of a line out ought to be recognised as great acting but harder to see how the same argument can be applied to the act of scoring a try. A player would need to run the same dramatic work argument to claim that he had any type of performance right that might be protected.
With the current law set against players, the issue of cash for tries is likely to be resolved through contractual negotiations. However neither the clubs nor the Home Unions are likely to have sympathy for the players. The Unions and the top Premiership clubs, which benefit most from the large fees that TV rights command these days, will no doubt argue that their players are already benefiting substantially from this particular income stream. Indeed, particularly at international level, the high broadcast revenues are central to meeting the player's fees. Clubs would also argue that the salaries they pay their players includes a sum to acquire any commercial rights they might have in their performances and, at present, standard players' contracts make it clear that players are required to assign their commercial rights to the clubs as a term of their employment.
Payment for tries remains part of a wider issue for players who may be seeking to gain greater control of their commercial rights. Keith Wood, amongst others, has questioned the use by the IRFU of his own intellectual property in advertisements and promotions and it may not be long before players' are insisting on a share of future merchandising income before they put pen to paper as it can also be argued that ultimately fans buy goods on the strength of their appeal. For the moment, however, the current sporting and legal landscape is not likely to provide the players with the opportunity to benefit every time their "famous moment" is shown on the screen. However the combination of ever increasing player power and recent OFT and EC challenges to the practice of the collective sale of TV rights means that this is a debate which is unlikely to fade away.
First published in Running Rugby Magazine in March 2000.