Can sportsmen copyright their moments of glory?
If Greg Rusedski or Tim Henman were to win Wimbledon 2000, it is a fairly safe bet that their winning point would very quickly become ingrained in the nation's sporting consciousness. 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.
But some of today's competitors are no longer content to reap the indirect financial benefits of their moments of glory 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 the Premiership's big names are about to register their memorable goals as their own "intellectual property", sparking a lively public debate. Sporting events or seasons are frequently encapsulated in one defining moment. The most famous example is Geoff Hurst's clinching goal in the 1966 World Cup Final, but Henry Cooper's felling of Muhammad Ali, Shane Warne's first ball in an Ashes series and Jeremy Guscott's winning drop goal for the Lions on tour in South Africa have remained abiding and much repeated memories of their respective sporting encounters. Yet it is hard to see how a player could rely on intellectual property rights to claim a fee each time his goal is shown on Match of the Day.
If a player had a well-known method of scoring a goal - perhaps David Beckham with his curling kicks - he might consider registering that movement as a trade mark. (After all, Bradford and Bingley managed to register a finger tapping a nose as a trade mark for financial services.) But trade marks have to be registered in respect of particular classes of goods or services. 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 could claim the protection afforded by copyright if he could persuade a court that his performance on the pitch was a dramatic work. It might be possible to argue that a particularly dramatic dive in the penalty area ought to be recognised as great acting, but harder to see how the same argument could be applied tot he act of scoring a goal. A player would need to pursue 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 goals is likely to be resolved through contractual negotiations with the clubs. However, the clubs are likely to have little sympathy for the players. The Premier League clubs, which benefit most from the huge fees that sports TV rights command these days, will no doubt argue that their players are already benefiting substantially from this particular income stream. Indeed, some would argue that it is only because they receive such high broadcast revenues that they are able to meet the players' wage bills. They would also argue that the salaries they pay their players include a sum to acquire any commercial rights they might have in their performances for the club. The new Premier League standard player contract certainly makes it clear that players are required to assign their commercial rights to the clubs as a term of their employment.
For the moment, therefore, the 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. But the combination of ever-increasing player power end recent challenges to the collective sale of TV rights means this is a debate that is unlikely to fade away.
First published in The Times on 8 February 2000.