Intellectual Property of Wrestlers in World Wrestling Entertainment

Author: Janhavi K.M, Editor-in Chief, IP Matters & Law Student, Christ (Deemed to be University), Bangalore

• INTRODUCTION

Wrestling is a sport that falls under the category of contact sports. Professional wrestling is different from the wrestling portrayed in World Wrestling Entertainment. While wrestling is an uncertain, unplanned match between two athletes in their respective weight categories, WWE wrestlers are to follow and act-out a certain script- before, during, and after the match[1].

World Wrestling Entertainment (WWE) refers to itself as an integrated media organization [2] as it involves itself with various modes of global entertainment from live shows to books, concerts, and merchandising. The company has claimed to own around 9,000 worldwide copyright registrations and 8,000 active and registered trademarks in more than 80 countries along with 160 licensing deals[3]. The in-house Intellectual Property team of WWE is accredited to be one of the most innovative in-house legal teams by the Financial Times.

WWE recruits wrestlers from around the globe based on certain training and physical requirements. These wrestlers are made to sign a contract where they assign all the intellectual property developed by them to their contractors, i.e., WWE[4]. The contract provides for blanket provisions that assign all intellectual property rights to WWE and does not provide any opportunity for the wrestlers to perform outside the scope of the contract.

• CAN WWE’S WRESTLING BE SUBJECTED TO INTELLECTUAL PROPERTY LAWS?

Sports are not generally protected under most forms of intellectual property due to the unscripted and uncertain nature.[5] Trademark is the most common type of protection awarded to individual athletes for purposes of merchandising and advertising. Copyrights and Patents are typically not invoked for the protection of intellectual property of athletes.[6]

In WWE, the intellectual property of the wrestler is broader than those of an athlete who masters the sport for participating in competitions. WWE is a scripted entertainment series broadcasted on the internet and television. The intellectual properties involve elements like incidents, dialogue, characters, actions, routines, ideas, gags, costumes or parts of costumes, accessories, crowns, inventions, championship, title, or other belts and any other tangible or intangible materials written, composed, submitted, added, improvised or created.

The Copyright Law, both in India[7] and USA[8] cover scripts and choreography under the ambit of literary and artistic works. WWE has already enforced its copyright in the recorded matches between performers and other allied rights like rights of merchandising previously, hence validating that the wrestlers are performing copyrightable works.[9] The Trademark law is quite clear on the aspect of ownership of a registered mark. WWE is the owner of the names used in the ring by players as it is officially registered by them. There is a high possibility of a clash between performers and the company with regard to the terms of usage of such trademarked names vis-à-vis the nature and time of commencement of employment contract.

The most commonly observed clash between trademark ownership and wrestlers' rights is enshrined through the right to privacy. The right to privacy technically stops the commercial exploitation of personal components of an individual. In situations where the name of the player existed before the employment, the right to privacy is more likely to favor the wrestlers than the company.[10] In any situation, regardless of the time of conception of a wrestler’s stage name, a wrestler’s personal identity is intertwined with his/her ring persona due to detailed and invasive scripting.

• INTELLECTUAL PROPERTY RIGHTS V. CONTRACTUAL OBLIGATION

There are numerous instances of clash within the Trademark Law with regards to registering a name as trademark. In a leading case called In Re Lee Trevino[11] on the same issue, the US Courts held that the name of a famous golfer could not be used as the name of an enterprise as the name would hint towards the service given by Lee Trevino as a golfer and not as the enterprise he formed. In contrast, the US Court in In Re Carson[12] held that if the name sought to be registered as a trademark that identifies both the individual and the source of service under which it is registered, such a name could be protected under trademark law.

The incidents that take place in a wrestler’s real life are often integrated into the script. These incidents can range from drug reform stories, marriages, miscarriages to death.[13] The names adopted are often the real names of players, for example, John Cena’s legal name is John Felix Anthony Cena.[14] There are wrestlers who acquire their ring name from previous wrestling experiences such as Rey Mysterio.[15]

In such circumstances, even though the contract between the wrestler and WWE automatically vests the company with the ownership of all intellectual property owned or created by the wrestler, the US Patents and Trademarks Office (USPTO) has categorically rejected the renewal and registration of on-stage personas and their secondary names (such as Dean Ambrose and the secondary nick name of “lunatic fringe”)[16] without a consent form signed by the wrestler.

WWE further has over 5,572 plus registrations in the US Copyright Office. These registrations are awarded to books, magazines, articles written by the company about WWE stars, such as, “Heartbreak & Triumph: the Shawn Michaels story”. Every episode, intro music and motion picture is meticulously registered from 1984 to the present date. Individual wrestlers do not own any part of the copyright-able material that they create in the course of their contract, unless it is explicitly allowed by WWE.

• CONCLUSION

The wrestlers hired by WWE are hired as independent contractors rather than employees.[17] The Company has economic interests in maintaining monopoly over these intellectual properties due to massive investments on their part in developing elaborate scripts and storylines. In such a situation, due to the lack of employee-employer relationship, there is a deficit in possible protections available to the wrestlers.

There is a state-level protection offered to wrestlers through right to publicity, whereby an individual is allowed to protect their stage name from exploitation; though this right does not take precedence over any federal law, such as, Trademark or Copyright law. The right to publicity has been invoked in similar light previously by big personalities such as Mohammed Ali[18] and Johnny Carson[19] to curb misuse of their taglines and stage names.

There is a possible protection offered at the state-level yet again for copyright protection of certain moves created by the players individually or before their contract with WWR through the enforcement of personality rights/publicity rights.[20] Though unwanted use of one’s wrestling moves can be curbed, positive use of copyrighted moves cannot be exercised by the wrestler. This means that WWE wrestlers are not free to utilise their stage persona’s anywhere else without WWE’s consent.

The undertaken research topic is a grey area present in the category of “Sports and Intellectual Property”. Intellectual property and ownership/authorship becomes hard to identify and assign as the line between real and reel life personality of actors gets blurred.[21] As a wrestler spends more time in the WWE universe, embodying the character written for him/her, it results in inseparable amalgamation of both identities. In such a circumstance, the absolute and capitalistic intentions of WWE manifesting through the contract cannot be enforced without necessary modifications.

• Reference:

[1] Daniel Bilsky, From Parts Unknown: WWE v. Jim Hellwig in the Ultimate Battle for Character Copyright, 19 MARQ. SPORTS L. REV. 419, 421 (2009).

[2] About us, WWE, (June 10, 2020, 10:15PM), https://corporate.wwe.com/

[3] Alumni Profiles - Matthew Winterroth, Duane Morris, (June 10, 2020, 10:20PM), https://www.duanemorris.com/site/alumni_profiles_matthewwinterroth.html

[4] Salvador Guerrero, WWE Contract, US Courts (June 10, 2020, 10:30 PM) http://ia601904.us.archive.org/16/items/gov.uscourts.ctd.113085/gov.uscourts.ctd.113085.1.5.pdf

[5] IP and Sports - Background Brief, WIPO, (June 11, 2020, 8:00AM), https://www.wipo.int/pressroom/en/briefs/ip_sports.html

[6] Intellectual property and the specificity of sports, WIPO Magazine, (June 11, 2020 8:30 AM), https://www.wipo.int/wipo_magazine/en/2019/02/article_0008.html

[7] Section 2, Copyright Act, 1957 (India)

[8] 17 U.S. Code § 102: Subject matter of copyright: In general

[9] Harrington, Alissa M., What’s in a Name, Brother—Profit or Publicity: An Analysis of Trademarking Ring Names in Professional Wrestling, 7 Cybaris, 277-312 (2016)

[10] Cody Rhodes Files Trademark to Reclaim His Name From WWE, Noah Dominguez, CBR News, (June 11, 2020, 10:00AM), https://www.cbr.com/cody-rhodes-name-trademark-wwe/

[11] In re Lee Trevino Enters., 182 U.S.P.Q. at 253.

[12] In re Carson, 197 U.S.P.Q. 554 (T.T.A.B. 1977)

[13] Grimes LLC, Professional Wrestlers Face Possible Copyright & Trademark Issues, (June 11, 2020, 1:00PM), https://www.gandb.com/2019/03/professional-wrestlers-face-possible-copyright-trademark-issues/

[14] John Cena Biography, IMDB.COM, (June 11, 2020, 12:00PM), https://www.imdb.com/name/nm1078479/bio

[15] John M. Milner, Rey Mysterio Jr. Bio, CANOE – SLAM! SPORTS WRESTLING, (June 11, 2020, 12:00 PM), http://slam.canoe.com/Slam/Wrestling/Bios/mysterio.html

[16]LUNATIC FRINGE, Serial No. 86,370,179; DEAN AMBROSE, Registration No. 4470627.

[17] David Cowley, Employees vs. Independent Contractors and Professional Wrestling, 53 U. LOUISVILLE L. REV. 143, 148 (2014)

[18] Ali v. Playgirl, Inc., 447 F. Supp. 723, 726–27 (1978)

[19] Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983)

[20] Jonathan Bailey, PlagarismToday, Copyright and Trademark in Professional Wrestling, (June 11, 2020, 1:20 PM), https://www.plagiarismtoday.com/2020/03/04/copyright-and-trademark-in-professional-wrestling/

[21] Milord A. Keshishian, Milord & Associates, Trademark Litigation: WWE Wrestler Ultimate Warrior’s Trademark Infringement Lawsuit Survives Video Game Maker THQ’s Summary Judgment Motion, (June 12, 2020, 9:00AM), https://www.iptrademarkattorney.com/federal_court_wwe_wrestler_ult/