Many fans are wondering why NBA.com and their favorite NBA teams’ websites no longer have pictures of current players. The Philadelphia 76ers website currently features an image of the late Armen Gilliam – a fitting tribute, but what most fans are expecting is images of today’s stars. The answer stems from the current lockout between the National Basketball Association and the corresponding players’ association. As a quirk of the lockout, teams can no longer show images of current players on official websites. A typical team website contains roughly 1,000 individual pages, which means that on the eve of July 1, the first day of the lockout, the web developers were busy stripping those pages of every single image of an active player once the lockout went into effect.
This restriction applies not just to active players, but to some retired players as well. Teams can only show players that retired before the 1992-93 season, the expiration date of an earlier collective bargaining agreement. In addition to the uncertainty caused by the lockout itself, teams are now trying to figure out how to market themselves and sell tickets with pictures of cheerleaders, long-retired players, and mascots.
What is particularly strange about the NBA lockout website situation is that the NFL lockout still allows teams’ official websites to show players on team websites. The reason for this difference is the NBA agreement stated that in the event of a lockout, official league and team websites had to remove all images, videos, and likenesses of players; the NFL’s collective bargaining agreement had no such clause. So while NFL teams can still use players’ images, the NBA is in a real bind to market its product while the lockout continues. Ultimately, the fans are the real losers, because instead of videos of Blake Griffin dunking, Clippers fans are directed towards a story about former Clipper legend World B. Free. Arguably, the players themselves will suffer as well – the NBA websites provide a great deal of marketing visibility for players, enhancing their endorsement and other media opportunities. Perhaps this was part of the NBA owners’ strategy all along. I wouldn’t put anything past that group.
The legal community has enjoyed a lively discussion about this topic. Should the NBA and its teams have the right to claim fair use for copyright purposes on the grounds that the images are newsworthy? What are the players’ rights of publicity? Does the answer differ depending on the state where the team is located? However, it appears that the NBA has wisely taken the conservative approach. It will be interesting to see whether similar language appears in the new collective bargaining agreement, whenever one is finally signed.
This story should serve as a reminder to all business owners – make sure you know what you can and can’t use when an independent contractor’s agreement expires or is terminated.