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BNA's Patent, Trademark & Copyright Journal has for years been covering conferences presented by the Institute for Intellectual Property and Social Justice at Howard University'slaw school in Washington, D.C. Every year, professors Lateef Mtima (who is a member of our board of advisors) and Steven Jamar work hard to approach intellectual property law from a fresh point of view. In March, I was pleased to be able to participate in their CLE program with a discussion on proposed legislation to institute protection for fashion designs.

Anyway, for several years now, one of the recurring topics at the IIPSJ programs has been the issue of athletes' personality rights, commonly known as the "right of publicity," which has its origins in one of the four traditional common law actions in privacy law, but has grown into its own over the years with several states having enacted publicity rights statutes.

With the current bankability of sports personalities, there are now several arenas in which there are significant income streams. Of course, there's the obvious use of players' names or numbers on jerseys and other memorabilia, in documentary films and highlight reels, and other traditional sports-related merchandise. However, in the last decade, one of the largest areas of growth has been in video games. Led by Madden NFL, athletes' likenesses are appearing in a range of sports-related games.

There have been relatively few prominent legal actions involving currently playing professional athletes, but retired athletes and college athletes have been struggling to get compensation. This can be viewed from a social justice perspective if one takes into account the fact that retired athletes, regardless of the level of play they might have reached, often suffer significant health-related consequences from playing full-contact sports like football.

The National Collegiate Athletic Association has, in particular, been a focus of legal action and criticsm, because of the draconian contracts that student-athletes are required to agree to. We plan to explore this issue further, but in a recent episode of The Daily Show, correspondent Aasif Mandvi slammed the NCAA for its actions against two students.

In one incident, Joel Bauman, who was a member of the University of Minnesota's wrestling team, produced an original hip-hop video with an inspirational message. Because he was earning some revenue (not enough to break even, though) and he used his own name in connection with the video, the NCAA revoked his eligibility. He has been kicked off the team and has lost his scholarship, which was covering only 10 percent of his tuition in the first place. The university also revoked his coverage for treatment of continuing health problems arising from a concussion suffered while he was playing.

Another situation involved Ed O'Bannon, who played basketball for the University of California at Los Angeles in the early 1990s and professionally in the United States, South America, and Europe until 2004, who brought a legal claim against the NCAA for licensing the use of his image in a video game.

Recently, a group of retired NFL players crafted a settlement agreement regarding its complaints with the NFL. A federal district court has granted preliminary approval to the settlement, so the issue isn't completely over yet.

However, the question of student-athletes seems to linger, and it is complicated by video game producers who avoid using identifying information directly in an official release of a video game. If purchasers want to insert the identifying information themselves, it's easily done with a search engine and a quick, free patch. It will be interesting to see whether the NCAA feels any pressure to make any concessions to people like Bauman and O'Bannon.