Insights into litigation, sports law, media and legal culture

Making The Hayne Plane pay: What Jarryd Hayne can teach us about image rights

Jarryd Hayne during the NFL preseason game at Levi’s Stadium on September 3, 2015 in Santa Clara, California.

The World (which really means USA, at least in the USA) loves a true life, older guy who becomes a sporting hero. And so do I. These stories are often immortalized into movies.

Who can go past The Rookie (2002), in which Dennis Quaid plays Jim Morris, a real life coach who fulfilled his dream as a 35 year old to turn pro baseball player. In the movie, Quaid finessed a piercing Blue Steel gaze just before ‘pitching’ one of the 98 mile specials which earned real life Jim a spot on the Tampa Bay Devil Rays. It is a heart warming Walt Disney Story.

Mark Wahlberg is also fantastic in Invincible (2006), playing real life former bartender turned NFL player, Vince Papale. Whereas Quaid was the family man spending months on the road, forced to help his son with homework via public payphone, Wahlberg played the kind of gritty, mid city, 30 year old single guy whose hey day had apparently passed until the Philadelphia Eagles decided he had the goods.

Equally compelling are some of the real life stories. Saverio Rocca, at 33 years of age, was the oldest rookie in NFL history, averaging 42 yards per punt during his first NFL season in 2007. An Australian export, Collingwood and North Melbourne supporters rightly call Sav Rocca their own, claiming him as a huge success story given his lengthy Australian Football League career before the call up.

Sav Rocca claimed the title of oldest rookie in NFL history from another Australian born Punter, Ben Graham, formerly of Geelong Football Club. The Jets picked up Ben Graham at the age of 31, after he had also completed a stellar AFL career. Sav Rocca and Ben Graham participated in teams which played off against each other for a spot in the 2009 Superbowl. Ben Graham’s subsequent team, Arizona Cardinals, gained the honours, and he claimed the Superbowl experience.

Now we turn to Jarryd Hayne. He is a true life, borderline older guy (aged 27) who has also become a sporting hero. This Australian swapped a reportedly $1 million annual salary playing in the National Rugby League, for $600 a week in his attempt to join NFL team, San Francisco 49ers. He did it, we can’t believe he did it, and we all cannot get enough because he ‘never played NFL before’.

The Sav Roccas and Ben Grahams are now the forefathers, their exploits distinguished because they ‘just’ kicked torpedoes, whereas Jarryd Hayne returns them and, to be fair, inspires excitement in his bid to become a running back and play all over the ground.

When it is in the movies, the screen fades to black once the tension has eased, friends have hi-fived each other in bars, supporters have gathered round, and our sporting hero has mended at least one bridge with an estranged family member.

Rarely do we see the machinery of agents, management and endorsement deals on the big screen. The film Jerry Maguire is a notable exception. This is where the real money is made.

This machinery might ordinarily consume and suffocate a player who reaches star status. Imagine endless business meetings, discussions about endorsements, contractual negotiations (including over clauses designed to regulate off field behaviour), decisions about intellectual property protection and so on. A home game at Levi’s Stadium can feel far away.

However, Jarryd Hayne is no ordinary person, having already been an ornament of the NRL game. It only takes a cursory look online to see that he has an apparent eye for business as well as sporting talent.

We can learn from Jarryd Hayne, and to that end, let’s have a look at what he is doing well.

Jarryd Hayne Lesson 1 – Plan Ahead

The Hayne Plane” was Jarryd Hayne’s NRL moniker. Now NFL and 49ers fans love it too. Intriguingly, how did this nickname take off in the United States? Was it from journalists? Was it from expats educating their American cousins? Or… was it from Hayne himself?

In an amusing post appearing on IP Whiteboard, Damien Macrae has spotted that a company apparently associated with Jarryd Hayne applied to register THE HAYNE PLANE as a trade mark last September 2014, just as Hayne was preparing to announce his move to the United States.

Damien explains that “The Hayne Plane” refers to Jarryd Hayne’s famous post-try celebration, where after scoring a try he extends his arms to the side as if they were the wings of a plane, and by extension, Hayne himself.

Lleyton Hewitt is another who trade marked a proprietary gesture. His featured “C’mon” with a silhouette of a person wearing a backwards, baseball cap doing a pointing gesture to the face.

The registrant anticipated the application of THE HAYNE PLANE on goods as diverse as backpacks, clothing, games, toys and playthings, and items with a sporting theme including “protective padded articles for use in playing sport”.

One can imagine this (completely hypothetical) conversation in the 49ers locker room some time in late 2014:

Reggie Bush – “Hey, G’daaay mate!’.

Jarryd Hayne – “Awesome accent brother. But, hey, you can call me THE HAYNE PLANE. Everyone does…!

Nice…

Jarryd Hayne Lesson 2 – It’s not just about the goal, it’s about the sponsorship journey

Much has been written of the meagre $600 a week Hayne has been required to subsist on. There have been tales of second hand cars, shared hotel rooms and, as one publication put it, “It’s not about the money, it never was”.

And that is likely all true.

But before we shed a tear for the lost dollars, it might be sensible to remind ourselves of the following media release issued seven months ago entitled “Jarryd Hayne Joins Team Telstra”:

Today, we’re excited to announce Jarryd has joined Team Telstra as an official ambassador, in a partnership that will give our customers a unique and exclusive look at his remarkable journey.”

According to Danny Weidler for the Sydney Morning Herald, the deal was designed to give Jarryd Hayne a financial buffer as he chased his dream to make one of the greatest code switches ever seen. Under the agreement, he reported, Telstra would own the vision Hayne had been filming with a documentary crew over the past few months and would have access to all his movements. The deal’s value would increase as Hayne’s success grew.

So too, Hayne has been financially supported by David Paradice from Paradice Investment Management, who signed an early sponsorship deal with him a few months ago.

Jarryd Hayne Lesson 3 – Spend wisely

Back to the $600 a week again, and the early sponsorship deals.

Notably, Jarryd Hayne’s father has reportedly said:

“He has never had flash cars, although he did get a hammering from his (49er) teammates who all drive Hummers, Range Rovers and big four-wheel drives.

Further, whilst a recent article reported on Jarryd Hayne’s recent sale of his first Sydney home as he chases his American dream, it also mentioned his burgeoning property portfolio which includes an investment terrace in Darlinghurst, another place in Paddington, and (most importantly), the purchase of a home for his mother.

Jarryd Hayne Lesson 4 – As you get more famous, keep your IP up to date

In Australia, like England, there is no such thing as a free-standing general right by a famous person (or anyone else) to control the reproduction of their image.

To protect image rights in these jurisdictions, one must rely on a cobbled together patchwork quilt of laws.

Trade mark rights are available though, and one can trade mark one’s own name, just so long as it is to be applied to goods or services of a particular kind, and used to distinguish them from those of other traders.

Jarryd Hayne waited until recently before realizing it was time to take this next step, applying on 13 August 2015 to register his own name as a trade mark in Australia. Following suit shortly thereafter was a trade mark application for J Hayne Apparel on 28 August 2015.

The later application might represent the brand he wants to go forward with. If so, it is still a sensible defensive strategy to keep ‘Jarryd Hayne’ on the trade mark register for as long as he can.

It is always a good idea to register trade mark rights in jurisdictions where you plan to trade your goods or services, so one expects corresponding filings in places such as the United States. That said, Hayne’s management team will need to negotiate the NFL’s own contractual rights to Hayne’s image and name cautiously.

Jarryd Hayne Lesson 5 – Live in California

If ever there is a place looking after celebrity image, it is California. In Los Angeles, the home of the entertainment lawyer is Century City, a major commercial and financial area, and formerly a backlot of 20th Century Fox film studios. All Jarryd Hayne need do is take the short flight from San Francisco, walk down ‘The Avenue of the Stars” and he will find someone suitable to help.

Unlike Australia, California has excellent laws specifically to protect personality rights. Look no further than the marvellously named California Celebrities Rights Act 1985, which now enables a celebrity’s personality rights to survive his or her death for up to 70 years. See California Civil Code section 3344 for the publicity rights of living persons.

This codified law acknowledges that, in an age of celebrity, personality rights are property rights. Every person should have the right to control how their identity or likeness or personality or voice or name or image is commercialised by others.

What does this practically mean? It means Jarryd Hayne will likely be better placed to have a movie of his life made in Hollywood.

In California, there will be no ambiguity. A story about his life, even if Hayne plays no part in the movie himself, means his permission would be required and he should be paid.

Imagine by contrast the position in Australia, where there are no image rights, and assume a movie is made about Jarryd Hayne’s life without his permission:

  • Would it be defamatory? Likely ‘no’.
  • Would it breach his right to privacy? We have no right of privacy per se in Australia
  • Would it involve a breach of confidence? Likely ‘no’, because most of the key elements of his story are in the public domain
  • Would it involve misleading or deceptive conduct? This is the only fertile legal area, in that one can claim for conduct suggesting an affiliation, endorsement or approval of something where none exists (section 18 of the Australian Consumer Law). To cover off this legal risk, written approval might be sought which typically involves payment of a fee.

A recent example of a lawsuit essentially over image rights in Australia involves Gina Rinehart suing Channel Nine over its show “House of Hancock”. Defamation claims were dropped, but a claim for misleading or deceptive conduct has been pursued on the basis that the show “attempted to depict highly personal events in a fictionalised and dramatised way while maintaining that it is a ‘true’ story” (Tad Watroba, Hancock Prospecting executive director to The Australian). According to the AFR, the case returns to court on 18 September 2015.

Some further suggestions

Jarryd Hayne is clearly well advised and does not need our help. But perhaps he will accept a couple of suggestions.

Defend your brand

It is one thing to register intellectual property rights for your brand (in this case, You), and quite another to protect and defend them. To that end, there are two intriguing trade mark applications made on the Australian register in recent times:

  • The Hayne Plane 38 – Class 25 – Dean Robertson, Sunny Bay Queensland (applied for 27 August 2015)
  • The Hayne Plane – Class 16 – Jonathan Pitt, Cherrybrook New South Wales (applied for 29 August 2015)

I make no comment on the veracity of these applications because it is common for applicants to use a Trojan Horse to apply for trade marks on their behalf.

Let us assume, for the sake of argument, that these are independent applicants seeking to cash in on the Jarryd Hayne fame. In relation to the first application, one expects the Trade Marks Office will dispose of it rapidly. THE HAYNE PLANE is likely to ‘block’ The Hayne Plane 38 because of the similarity between the marks (only the inclusion of a number is new), and the fact that they encompass precisely the same goods.

In relation to the second application, a third party applicant might argue that class 16 is unrelated to the classes for which THE HAYNE PLANE is registered (classes 18, 25 and 28), and that the applicant intends to use the mark on goods (such as trading cards) for a completely legitimate purpose.  If such an argument were to prevail, then someone who is not Jarryd Hayne might be able to claim trade mark rights to his famous gesture.

The latter example highlights the potential limitations of image rights in Australia, and why a famous person in multiple jurisdictions needs to assess the breadth of their IP strategy on a country-by-country basis. There is no one size fits all approach.

For example, in Australia, given the lack of codified image rights, it can make sense to ‘go broad’ when registering trade mark applications. Whilst expensive, it can prove worthwhile if you want to cover the field and prevent third parties gaining rights in what is essentially You.

Think about who will play you in a movie

Surely this is the most important issue? I think Sam Worthington would play a good Jarryd Hayne. Sure they look nothing alike, but Sam has shown his chameleon-like qualities, bulking up for roles in Avatar (2009) and Clash of the Titans (2010).

Chris Hemsworth is at risk of being type cast for his flowing blonde locks in Thor (2011) and as James Hunt in the Formula 1 movie, Rush (2013). Otherwise he could have been a candidate.

As a smoky, perhaps Jarryd Hayne could consider Colin Farrell? Not Australian, but he certainly has the dark, brooding appearance capable of bringing a heart warming true story to life, not to mention the box office dollars!

 

I dedicate this post to my father, and to the heated debate we had last week over whether Jarryd Hayne would make the San Francisco 49ers roster. All I say is “I win”, but to help you through this, your duly authorized Jarryd Hayne jersey is in the mail.

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