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Pele v Samsung. Who will win?

The District Court of Chicago looks set to host an extraordinary legal match between the Brazilian soccer legend, Pele, and Samsung. The dispute has kicked off after Samsung reportedly pulled out of endorsement contract negotiations with Pele and then released a controversial advertisement.

Pele has taken exception to that advertisement, which is dominated by the smiling, bearded face of a man that Pele believes is a look-a like. An insert picture of Samsung's UHD TV shows a player executing a scissors kick, which Pele claims was famously used by him. According to Pele's claim, there is a prize of US$30 million to play for.

Michael Jordan recently told a court hearing his claim against the grocery chain, Dominick's that "my image is precious to me". Looking at the millions of dollars in fees that Jordan is reported to earn for his product endorsements, he is absolutely right. Endorsement deals can be extremely lucrative both during, and after, a sports personality's primary sporting career. As a result personalities are rightly extremely protective of their use of image.

So are personalities and their associated endorsement businesses well protected by law? Of course, laws can vary significantly from one jurisdiction to another. Germany, for example, has extremely strict laws surrounding use of images for commercial purposes without consent and in Guernsey image rights can be registered. In the US, Europe and Asia, laws are being developed to protect, in general terms, an individual's commercial interest in their image where that image has become valuable through the exercise of their profession.

Examples of successful claims, or settlements, for misuse of images have involved Eddie Irvine, the Formula 1 driver in relation to use of his image in an advertisement for a UK sports radio station and English cricketer Ian Botham against the International drinks company Diageo for use of his image in a Guinness advert. Similarly, Rihanna made a successful claim for use of her image on a Top Shop t-shirt, while Michael Jordan, was indeed successful in his claim against Dominick's.

With sports personalities regularly being paid large sums to endorse products, it seems that there is little doubt that a sports personality can expect some judicial sympathy if their image is used without their consent in the manner of an endorsement. This is often particularly when they have previous form for negotiating endorsement deals. So coming back to the current case, Pele now makes much of his income from endorsement deals and it follows that if an image of Pele himself had been used, you would back Pele to win.

But that is not the case here. The smiling bearded man is not actually Pele and the scissor kicking player is unmistakably not Pele. So how will the Courts deal with it?

If it were heard in the UK, the key question to answer would be whether the images, intentionally or not, mislead a proportion of the public into thinking Pele has endorsed the advert. One difficulty facing the advertisers may be to explain their casting decision, particularly given their exit from talks with Pele, if their reason was not to suggest Pele. Whatever their answer, the court will take into account that many views will be fleeting and first impressions will count. So, do you see an advertisement embracing the universal appeal of soccer, across boundaries of age and race, the excitement of the sport encapsulated through use of the spectacular kick that every player dreams of? Or do you believe that the man pictured is the great Pele himself enjoying watching a younger man execute his signature move? That will be for the court to decide.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at April 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.

First published in Sport Business, 1 April 2016

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