This SportTechie Legal article was written by Nerissa Coyle McGinn, an attorney in the Chicago office of Loeb & Loeb LLP.
Social media has become an integral part of sports, enhancing the fan experience and promoting player, team, and sponsor brands. Major platforms like Twitter, Facebook, and Instagram have created two-way channels for sports organizations and brands to interact with fans and each other.
In the “second screen” era, many sports enthusiasts are just as likely to be viewing a game on their smartphones as they are to be watching in person or on television. Social media can engage fans and attract younger audiences by giving them new opportunities to express their team spirit and be part of a community. Social-savvy sports fans can now rank alongside players, sports organizations, and sponsors as a team’s or league’s biggest boosters.
Essential to every sports brand is its intellectual property—including content, photos, video, graphics, slogans, logos, and trademarks—extremely valuable assets that can be especially vulnerable to misuse on social media. The interactive nature and technical infrastructure of social platforms can make protecting a brand’s IP a challenge. And the human element that makes social media interactions so attractive can be both positive and negative. Content creators, regardless of whether they are individuals or a whole team of marketers, can make mistakes or overlook issues that take on a life of their own online.
For any brand—and sports organizations and sponsors are no exception—the use of poorly chosen words and images can cause embarrassment or damage. Ahead of Game 3 of the NBA Finals against the Golden State Warriors, the Toronto Raptors tweeted an image of the team standing in front of a bridge, looking fierce, with the caption: “Crossed the bridge. Ready for battle.”
But the bridge pictured was the wrong one. Rather than using an image of the Bay Bridge, which connects San Francisco to Oakland, where the Warriors’s Oracle Arena is located, the Raptors used a picture of the Golden Gate Bridge, which would take the team nowhere near where they needed to be. As usual, the Twittersphere was quick to react, adapting the Raptors #WeTheNorth slogan to read #WeTheLost.
Other social media-related snafus can risk even more serious consequences. When the San Diego Padres temporarily changed their Twitter name from @Padres to @Madres to celebrate Mother’s Day, a sharp-eyed user called Ricky Padilla realized that the MLB team had changed both its display name and its actual handle. Padilla quickly snapped up the unprotected @Padres handle, which the team had failed to lock down, and essentially hijacked the Padres’ Twitter account. He relinquished the handle a few hours later, but the incident illustrates how easy losing control of valuable IP assets can be.
A more frequent problem with social media is the unauthorized use of IP assets. Two years ago, a small white nationalist group calling itself the “Detroit Right Wings,” lifted and altered the logo of the NHL’s Detroit Red Wings. The group changed the spokes of the wheel in the Red Wings’ to evoke the swastika symbol used by the Nazis.
The group used that adapted logo on its Twitter account and on signs that members carried at the Unite the Right rally in Charlottesville, Va., in 2017. Both the NHL team and the NHL immediately spoke out against the Detroit Right Wings and the rally, in which a counter protestor was hit and killed by a car, and announced that they were considering legal action to protect their IP.
Sports teams, leagues, and sponsors must be proactive to protect their brand’s IP from missteps, misuse, and infringement on social media. To do that, they can follow these guidelines:
- Accept an appropriate level of risk: Today’s digital world can be a risky place. Social media is an open forum, and staying in control of the messaging is often next to impossible. Posts and responses from fans and others are unpredictable and can take a conversation—and brand assets—in unwelcome directions. Even if an offending message, post, or tweet is deleted, the internet can have a long memory. There’s often a good chance that someone has a screenshot. While sports organizations and brand partners can’t avoid social media, they should determine the level of risk they are willing to take and match their use of digital platforms to that.
- Monitor all platforms: Limit social media account access and disable the access of those who have left an organization. Keeping a close eye on all social media accounts, regardless of how often they are used, will not only guard against outsiders hacking into them, but also minimize the potential negative effect of mistakes from authorized users. Organizations should also establish their brand handles across all available digital platforms to prevent outsiders from claiming them.
- Protect proprietary content: Set up a system for reviewing draft social media posts that does not concentrate authority in just one or two people. Issue guidelines across a sports organization, as well as to brand partners, agencies, and others connected with the organization specifying what can be posted to ensure that copyrighted content, videos, and photos are not posted or shared without authorization.
- Respond quickly and appropriately: Successfully navigating the digital landscape requires a quick response. After gaining back control of their Twitter handle, the Padres thanked Padilla for “keeping the @Padres safe” and offered him— and his “madre and padre”—tickets to a future home game. The move earned the team the hearty approval of fans on Twitter. Both humor and a willingness to acknowledge the gaffe, and offer an apology where needed, can help minimize potential damage.
- Pursue infringers: Many teams and leagues are as vigilant in pursuing the unauthorized digital use of their IP as they are about pursuing the manufacturers and sellers of counterfeit goods. The NFL, the NCAA, and the IOC are well known for policing the use of their marks—including the Super Bowl, March Madness, and the Olympic rings—in social media and digital advertising, in part to protect the value of official sponsorships for their brand partners. In recent years, sports organizations including the NFL have also faced the issue of fans and media sites sharing video clips of games on social media. The leagues regularly issue Digital Media Copyright Act take-down notices against posters of unauthorized content.
The ongoing evolution of social media and technology requires sports teams and leagues to constantly be on the alert for internal and external threats to their IP rights. But social media use has also become an essential part of modern brand identities. Whether IP threats are inadvertent—the result of honest mistakes—or deliberate, sports organizations need to enforce clear policies and take action to protect both their assets and their social media accounts.