The title above is a wonderful quote by Pablo Picasso and sets the table for our next two articles.

One of the great tragedies in the history of sports, is the fact that Jim Thorpe’s Olympic records are still not officially recognized more than a hundred years after he won them. Jim Thorpe, an American Sac and Fox Indian, has been considered the greatest athlete of all time because of what he accomplished at the 1912 Summer Olympics in Sweden. Look up his numbers and see that even going head to head against today’s highly trained athletes, Thorpe would prove to be extremely competitive. And he did not have today’s sophisticated feedbacks on training and computer designed footwear. In fact he competed in mismatched shoes. But because he made a few bucks barnstorming in semipro baseball games, the International Olympic Committee (IOC) stripped him of his records claiming in effect that he was a “professional athlete” and thus not permitted to compete against amateurs. In 1982 they did re-issue two replica medals to his family, but the IOC still refuses to reinstate his records.

So how does that tie in with our photography and artist readers of this blog? Well, it’s a meandering read, but we think it ties in to worthwhile knowledge, if you hang in and read through this and you’ll see how it involves photographers, models, Internet influencers, and bloggers.

Historically, model release issues were a matter governed by state law. An exception has been and remains a Federal Law known as The Lanham Act. Simply put The Lanham Act is a trademark law which permits certain individuals – invariably celebrities, notable people, professional athletes and the like – to file suit against individuals and entities which employ the images of such persons to make it appear that they are endorsing a product, service, company or entity. The long-standing concept (since 1946) is that “famous” people have the right to commercially exploit their own images as they see fit. So Wheaties couldn’t place an athlete like Jim Thorpe on their boxes without negotiating with his heirs and paying for the privilege. Not that they did during his lifetime, but Jim Thorpe finally graced a Wheaties box in 2001.

Over time more legislation and regulations have come into effect from the Federal Trade Commission and some states regarding the use of models or laypeople in connection with false or deceptive advertising. See our article/link “What They Know and How They Know it”. Particular attention is being paid to so called “false endorsers”. Classic and common example is the image of a model on say a medical website with a quote coming from the model like “Dr. Smith gave me my life back. He’s the best doctor/dentist/accountant/financial planner/stock broker around” The usual scenario is that the model has never been a patient or customer of that professional. Often the photo is a stock photo used by a web designer who is either unaware of the law or intentionally breaking it so as to avoid paying a fee.

If the person employed in such advertising is NOT in fact an actual customer or patient the ad, website, brochure or TV commercial should so state. Typically, ads that comply with the law using non-customers, non-patients or even persons appearing as if they are a doctor, when in fact they are not, state “Actor Portrayal” or even more explicit language stating that the model or actor is a “paid endorser”. Various phrases disclosing ‘the truth” are employed to avoid liability. A model release alone will not protect the advertiser from facing liability.

When Jack shot photos for the packaging of a cosmetic, the models had to sign statements that they had used the specific product. Jack’s makeup person also applied some product on the models to insure it was used. No where on the product did it say any of the models used the product, it was just a photo of a model on the box itself, but in that case it’s an implied endorsement.

Now the State of California has enacted a statute which may affect the contents of the model releases you should use for college athletes. Without getting too deep in the weeds, the National Collegiate Athletic Association (NCAA) that is the governing body of most college sports, essentially controlled (or prevented) a college athlete to get paid for the use of his/her image in advertising, promotion and marketing. The NCAA makes millions of dollars (if not more than millions), on these “amateur” athletes. March Madness pools alone is estimated to involve 8 to 10 BILLION dollars every March. That’s the pools, not the betting on individual games.

Now and in the future, because of this proposed law in California, the NCAA may be forced to permit such college athletes to be paid like any other person whose name, image and/or likeness is used to sponsor or endorse a product, service or entity. The California bill will allow players to sign sponsorship’s and endorsements – meaning they can get paid – is on its way to becoming law.

The California Senate voted to pass a bill to allow college athletes in the state to earn income from endorsements or sponsorship despite NCAA rules prohibiting payment or income. The NCAA rules prohibit college athletes from being paid for playing their sport and prohibits the athletes, in most instances, from using their popularity as a college athlete to profit as part of an overarching goal to maintain amateurism in college sports. These rules are commonly circumvented and scandals involving payments to athletes by “school supporters” are typical but “illegal”. “No-show” off-season jobs, or hiring relatives at high paying jobs are among the favorite ploys to “not pay” (wink wink) college athletes.

California’s “Fair Pay to Play Act,” would prevent California state and private universities from prohibiting athletes “from earning compensation as a result of the use of the student’s name, image or likeness.” In practice this would mean that a basketball player could get paid to endorse a retailer just like any other student could get paid to endorse or appear in an ad for a car dealer or computer repair shop.

“Come to Joe’s Computer Repair Shop and meet Joe Schmoe, the winner of this year’s Collegiate Computer Nerd Bowl!!”

Today, college student Joe Schmoe can get paid by Joe’s Computer repair shop, but not the top college men or woman’s basketball, soccer, track athlete, swimmer, etc. While the Collegiate Computer Bowl pays nothing or near nothing (we don’t know, it’s a made up bowl) to the school, the sport programs can pull in real, actual millions (this is not made up) to the school. In many universities, the head football coach can make much, much more in salary than the president of the school. The athletes? Zilch.

The NCAA opposes athletes getting paid by their colleges like professional players get salaries from professional sports teams. College athletes are allowed to be paid up to the cost of attending school but their ability to profit off their status as an athlete is virtually non-existent. Players are not allowed to sign marketing deals or sell their photos – autographed or not. The bill, if passed which appears likely, would go into effect in 2023.

So, finally, how does this affect the advertising and photo industries? It opens up a new avenue of income for both the student/athletes and photographers. Potentially this new law may generate considerable revenues for all involved especially in towns where the college football or basketball teams get national exposure and make millions of dollars for the universities. “Hometown Car Dealership” needs promo/advertising photos of star quarterback for their ads in the local paper (if it still exists) and for online. And if the photographers are smart (like the readers of this blog) they have buttoned up releases because over time, those photos become more valuable. Like having college photos of Joe Namath or Joe Montana, famous football heroes, or even OJ Simpson, a somewhat infamous football player. Well-kept historical photos (with proper paperwork) grow more valuable over time.

Be aware, the issues surrounding the use of college athletes and just what they can consent to are not settled. Lobbyists, colleges, the NCAA and boatloads of lawyers are “working on this issue”. College athletes are somewhat unique in that they can’t agree to sign a model release and get paid for use of their image except in extremely rare cases. It is the athlete who bears most of the risk if they break the current NCAA rules but photographers should avoid getting involved in any shoot employing a college athlete without getting the approval of the NCAA or the college itself so as to avoid grief. And be aware of the Lanham Act rule, as the FTC is not an agency you want in your business and looking over your shoulder. If your photos involve an endorsement, make sure there is no “wink wink” involved in the use of a product or service. Facilitating a falsehood could get you into very deep do do.

California is on the cutting edge of what many experts believe will become law wherever the NCAA rules college sports…and that is in all 50 states. And such a ruling is good for photographer’s bottom line. You can bet on it and if you’re not a pro, without losing your amateur status.

Part 2 will address some of the other government agencies looking over your shoulder and regulating the ways you do business. “Ignorance of the law” as the cliché goes, “can cost you lots of money AND make you pay a retainer to a lawyer”. We prefer the aphorism by Ben Franklin, “An once of prevention is worth a pound of cure” There’s a reason the guy is pictured on hundred dollar bills.