Optional Question No. 3 - Publicity Rights in the Era of College NIL Background- for this question you are going to use the Right of Publicity and NIL Discussion ppt slides posted on Blackboard (Exam Info tab). Coke Zero Photo: Students attending basketball game had photo taken. Photo was sold/licensed to local coke distributor who used photo on billboards and in in-store promotions. Photo was altered to replace UofL logos on their t-shirts to display the Coke Zero logo. Students sued and settled with the distributor for an undisclosed amount. UofL Photo: Photo taken of student athlete during home game in 2014. Kroger rebranded its "campus" store in 2017 with the photo on ppt Slide 4. Assume athlete signed a consent similar to that provided on ppt Slide 5. Assume Kroger secured a license from UofL to use the photo in its' rebrand. UofL Grant of License signed by Student Athletes in 2015 - I hereby grant to UofL and the Atlantic Coast Conference (the "ACC") and their licensees and authorized users, a perpetual, worldwide and royalty-free license to use my name, voice, image, photograph, likeness, right of publicity, if any exists, or other image or descriptors of myself, in promotional and marketing materials and media, public service announcements and other purposes related to my participation in the athletic program of UofL or my representation of UofL or the ACC in collegiate sports contests, practices, news conferences, pre- and post-game events, or related sports events and activities ("Sports Events") that UofL or the ACC determines, in its sole discretion, is in the interest of UofL or the ACC. - I further understand that UofL's use shall be limited to material that (1) was generated during the time period from my recruitment, commitment, participation and/or recognition as a student-athlete at the University, and (2) includes UofL trademarks, uniforms, or other indications of UofL athletics participation. Instructions: After reviewing the photos, scenario, and grant of license, and text/assigned readings related to publicity rights, please answer the questions below. You should provide a detailed analysis and discussion on both the legal issues and managerial issues that may arise from the continued usage of this former student athlete's photograph. Legal Analysis a. Apply each of three elements of a publicity rights claim to determine if use of the athlete's image in use in the Kroger rebrand appears to meet the legal standard for establishing an actionable claim for violating publicity rights? 1) What is identity? Discuss any cases or other legal authority that helps to answer this question? (precedent) 2) What is consent? Discuss any cases or other legal authority that helps to answer this question? (precedent) 3) What is a commercial advantage? Discuss any cases or other legal authority that helps to answer this question? (precedent) b. Which element(s) are more or less clear; or harder/easier to establish? Why? Explain? c. Do you think the grant of licensing signed by the athlete in 2014 or 2015 permits the continued use of her image in 2023 ? Managerial Analysis - choose only one of the following perspectives and discuss your recommendations for how to respond/address this continued use of the image, you should explain your rationale for our recommendations and support those recommendations with your legal analysis from above. a. From the athlete's perspective - what would be your response and how would you proceed? b. From Kroger's perspective - how would you respond to an inquiry from the athlete asking for compensation? c. From UofL's perspective - how would you respond to an inquiry from the athlete asking for compensation? Compare - Students attending basketball game in Cincy during a NCAA MBB tournament game had photo taken. - Photo was sold/licensed to local coke distributor who used photo on billboards and in-store promotions the following week. - Photo was altered to replace UofL logos on their t-shirts to display the Coke Zero logo. - Students sued and settled with the distributor for an undisclosed amount. - The soccer player is one of your classmates. - She snapped this photo recently while shopping at Kroger - The photo featured in this display was taken of her during home game in 2014. - Kroger rebranded its "campus" store in 2017. - Assume athlete signed a consent similar to that provided on Slide 5. Optional Question No. 3 - Publicity Rights in the Era of College NIL Background- for this question you are going to use the Right of Publicity and NIL Discussion ppt slides posted on Blackboard (Exam Info tab). Coke Zero Photo: Students attending basketball game had photo taken. Photo was sold/licensed to local coke distributor who used photo on billboards and in in-store promotions. Photo was altered to replace UofL logos on their t-shirts to display the Coke Zero logo. Students sued and settled with the distributor for an undisclosed amount. UofL Photo: Photo taken of student athlete during home game in 2014. Kroger rebranded its "campus" store in 2017 with the photo on ppt Slide 4. Assume athlete signed a consent similar to that provided on ppt Slide 5. Assume Kroger secured a license from UofL to use the photo in its' rebrand. UofL Grant of License signed by Student Athletes in 2015 - I hereby grant to UofL and the Atlantic Coast Conference (the "ACC") and their licensees and authorized users, a perpetual, worldwide and royalty-free license to use my name, voice, image, photograph, likeness, right of publicity, if any exists, or other image or descriptors of myself, in promotional and marketing materials and media, public service announcements and other purposes related to my participation in the athletic program of UofL or my representation of UofL or the ACC in collegiate sports contests, practices, news conferences, pre- and post-game events, or related sports events and activities ("Sports Events") that UofL or the ACC determines, in its sole discretion, is in the interest of UofL or the ACC. - I further understand that UofL's use shall be limited to material that (1) was generated during the time period from my recruitment, commitment, participation and/or recognition as a student-athlete at the University, and (2) includes UofL trademarks, uniforms, or other indications of UofL athletics participation. Instructions: After reviewing the photos, scenario, and grant of license, and text/assigned readings related to publicity rights, please answer the questions below. You should provide a detailed analysis and discussion on both the legal issues and managerial issues that may arise from the continued usage of this former student athlete's photograph. Legal Analysis a. Apply each of three elements of a publicity rights claim to determine if use of the athlete's image in use in the Kroger rebrand appears to meet the legal standard for establishing an actionable claim for violating publicity rights? 1) What is identity? Discuss any cases or other legal authority that helps to answer this question? (precedent) 2) What is consent? Discuss any cases or other legal authority that helps to answer this question? (precedent) 3) What is a commercial advantage? Discuss any cases or other legal authority that helps to answer this question? (precedent) b. Which element(s) are more or less clear; or harder/easier to establish? Why? Explain? c. Do you think the grant of licensing signed by the athlete in 2014 or 2015 permits the continued use of her image in 2023 ? Managerial Analysis - choose only one of the following perspectives and discuss your recommendations for how to respond/address this continued use of the image, you should explain your rationale for our recommendations and support those recommendations with your legal analysis from above. a. From the athlete's perspective - what would be your response and how would you proceed? b. From Kroger's perspective - how would you respond to an inquiry from the athlete asking for compensation? c. From UofL's perspective - how would you respond to an inquiry from the athlete asking for compensation? Compare - Students attending basketball game in Cincy during a NCAA MBB tournament game had photo taken. - Photo was sold/licensed to local coke distributor who used photo on billboards and in-store promotions the following week. - Photo was altered to replace UofL logos on their t-shirts to display the Coke Zero logo. - Students sued and settled with the distributor for an undisclosed amount. - The soccer player is one of your classmates. - She snapped this photo recently while shopping at Kroger - The photo featured in this display was taken of her during home game in 2014. - Kroger rebranded its "campus" store in 2017. - Assume athlete signed a consent similar to that provided on Slide 5