Who owns your gimmick?

March 30, 2017

The subject of who owns a wrestling character’s gimmick came up earlier this month when Matt and Jeff Hardy left Impact Wrestling and appeared to take their characters they developed in the organization with them.

It was reported by Ryan Satin’s The Wrestling Sheet and Dave Meltzer that Impact Wrestling’s lawyers sent a cease and desist letters to independent wrestling promotion Ring of Honor and its distributors to prevent the Hardys to use their gimmicks developed and used in Impact Wrestling on a Ring of Honor PPV.  As a result, Matt and Jeff Hardy did not use their characters on the ROH PPV.  Rather, they were generic versions of the Hardy

Prior to the ROH PPV, the Hardys made a “surprise” appearance at a ROH show which may have tipped off Impact Wrestling that the two were going forward in using the gimmicks in another organization.  Impact Wrestling’s Ed Nordholm stated that the “Broken Universe” character(s) were created by the company’s creative team which would mean that the organization would have ownership rights.

Notably, Matt Hardy applied for the trademark rights to his character he used in TNA, Broken Matt Hardy on March 1, 2017.  The process for obtaining a trademark takes 8-10 months if there are no issues.

Still, the question is whether or not the Hardys can use the gimmick without repercussions from Impact Wrestling lawyers.

There are a number of scenarios to consider.

The first is what does the contract say.  One would think that the terms of their contract with Impact Wrestling would dictate who has control of the intellectual property, then again, TNA did not secure its right to the intellectual property rights by not filing for the trademark.  Since Hardy filed for the trademark, one would think that he might be in breach of his contract by attempting to assert his rights when/if they contracted with TNA.

But trademarks are just one issue to discuss.  Trademarks protect items that help define a company brand, or in this case, performers.  With a trademark, the Hardys can monetize the Broken Matt Hardy brand through selling t-shirts or other merchandise.

There is also the issue of copyright protection for the Matt Hardy gimmick.  A copyright protects “original works of authorships.”  For the most part, a copyright would protect the use of characters.  In this case, a copyright would be created through the Hardys’ gimmicks of Broken Matt Hardy and Brother Nero.

With respect to the copyrighted material, we assume like most professional wrestlers, they were classified as an independent contractor.  Thus, a “work for hire” scenario in which TNA would own the characters since the creation occurred during the Hardys employment would not apply.  Under the theory of “work for hire” an employee’s invention or creation would be owned by the employer considering that it was within the scope of employment.  Going back to the terms of the contract, usually, even if a worker is considered an independent contractor, the contractor would include a provision that would assignment of the intellectual property would fall in favor of the contractor.  In this case, TNA.

We note that a Copyright search, as of March 30, 2017, of “Matt Hardy” reveals Copyrights owned by the WWE in 2011.  A search for “Broken Matt Hardy” yielded nothing.  A search for Brother Nero (Jeff Hardy’s character, revealed no Copyright licenses.

The character issue is similar in nature to what occurred with the character Stephen Colbert when the individual Stephen Colbert left Comedy Central to replace David Letterman as the host of The Late Show on CBS.  Courts have found cartoon or fictional characters to be protected by copyright if they are sufficiently distinct and unique.  For instance, as this article points out Superman, Mickey Mouse and Tarzan are all protected under copyright law.

In comparison, the WWE tends to trademark its characters currently under contract.  It also trademarks phrases that it might market (i.e., make into t-shirts).  Notably, at Wrestlemania 29, held on March 29, 2015, Brock Lesnar used the phrase “Suplex City” during his match.  The next day, March 30, WWE filed for the trademark.  The WWE had trademarks for the Hardys WWE gimmick but let it lapse when they left the company.

As stated, the WWE holds some copyright licenses over Matt Hardy, but nothing related to the “Broken” gimmick he developed in Impact Wrestling.

Impact Wrestling “wrote off” the Hardys gimmick in an episode after the duo were released from their contract.

In response, on Matt Hardy’s YouTube page, the Hardys recreated their Impact Wrestling characters to give their own ending of their stint at Impact Wrestling.  Will Impact Wrestling take legal action for the Hardys’ latest reincarnation of their characters?  Probably not, although if this continues, you might see them flexing legal muscle.

While many might think this exercise in examination is ridiculous, it really is entertainment and intellectual property law wrapped up in the world of professional wrestling.  It does have serious legal repercussions when you think of the right to make money off the characters.  Will Impact Wrestling seek a cut of the Hardys future use of the gimmick if they go to WWE? Think about the independent wrestling shows and autograph shows in which they are paid a fee to attend.  Would Impact Wrestling want a cut of their appearance fees?  Will the WWE seek to acquire the gimmick if the Hardys make a return?  Does the loss of the gimmick hurt the future employment of the Hardys?  There are a lot of issues in the business-side in the creation of a gimmick.

UFC Flyweight receives one-year suspension from USADA

March 30, 2017

UFC Flyweight Matheus Nicolau received a one-year suspension from USADA . The Brazilian fighter tested positive for the banned substance anastrozole.

Nicolau was flagged by USADA for an anti-doping violation in November 2014 and was forced to withdraw from UFC Fight Night 100.  The flagged test was a result of an out-of-competition test taken on October 13, 2016.  Nicolau’s suspension is retroactive to the date of his flagged test.

Anastrozole is an aromatase inhibitor and its intended use is to treat breast cancer in women.  The substance lowers estrogen hormone levels and is sometimes used as a kickstart for testosterone production.  This would infer that he utilized the drug for some type of performance enhancing drug.

Payout Perspective:

At just 24 years old, a year suspension should not sting Nicolau’s career.  But, the circumstances surrounding the year suspension still hurts as he claims that there were only traces of the banned substances which could not provide any performance enhancing effects.  Thus, he believes it to be from a contaminated supplement although he was not able to pinpoint it.  Perhaps that’s the reason for the one year suspension while most others carry a mandatory two.

Judge angered by WWE and Plaintiffs disregard for brief rules

March 29, 2017

A federal judge in Connecticut has issued a written smackdown of the litigation between the WWE and former wrestlers in a contentious lawsuit claiming that the company knew of information concerning a link between repeated head trauma and permanent neurological conditions that it exposed to its wrestlers.

The lawsuit involves former pro wrestlers Evan Singleton and Vito LoGrasso and World Wrestling Entertainment.  The Plaintiffs originally filed their lawsuit in Pennsylvania in January 2015.  They were among several former wrestlers that filed suit which were represented by the same lawyer and law firm.  The WWE successfully moved the case to Connecticut where the company is headquartered.  Judge Vanessa L. Bryant issued an order denying a motion for summary judgment from the WWE on the issue of fraud by omission claim brought by the wrestlers.

As part of the summary judgment motion, the parties must submit a statement of undisputed material facts (“SUF”) .  The party opposing the motion, has the opportunity to admit or deny the facts submitted by the moving party and then assert its own SUF.

The judge chastised both sides for submitting briefs that were longer than the rules allowed.  “[T]he parties have buried the Court in extraneous information, a substantial portion of which is argument and not fact.

The Court allows briefs for Motions for Summary Judgment to have a maximum limit of 46 pages.  However, WWE’s brief was 60 pages.  Plaintiffs submitted a 125-page statement in response to the WWE’s overlong brief.

As a result, the Court determined that the parties should refile its statements as they were “unnecessarily long and argumentative, and reviewing them in full would be wasteful of the Court’s scarce resources.”

The Court order both parties to submit revised Statement of Facts with a limit of 30 pages for the WWE and Plaintiffs to file a short response admitting or denying Defendant’s SUF and then filing 30 pages with its own disputed issues of material fact.

Order Denying Defendant’s MSJ by JASONCRUZ206 on Scribd

Payout Perspective:

The venom between the lawyers in this lawsuit is exemplified by the overlong briefs as they cannot agree on even the undisputed facts of this case.  As a requisite part of the filing, a concise statement is required.  Here, long does not necessarily mean effective.  Moreover, the order issued by the Judge shows she is not happy with either side.

Singelton and LoGrasso are the last WWE wrestlers standing as Judge Bryant dismissed similar claims brought by Russ McCullough, Ryan Sakoda, Matthew Wiese and William Albert Haynes, III as the Court concluded they didn’t wrestle with WWE after the company allegedly learned of a link between concussions and degenerative neurological diseases in 2015.

WWE and StubHub announce partnership

March 28, 2017

The WWE and StubHub announced a multi-year agreement making the ticket company the WWE’s exclusive ticket resale marketplace for fans in the U.S. and Canada.  The agreement comes in time for the WWE’s biggest event of the year, WrestleMania.

In addition to the WWE, StubHub has deals with Major League Baseball, the San Francisco Giants, the NBA’s Philadelphia 76ers, the NHL’s LA Kings and college football’s Alabama Crimson Tide.

Payout Perspective:

Although the arrangement was not spelled out in the news release, its likely StubHub buys a sponsorship with the WWE for brand placement at WWE’s events or on its web site.  If there is a sell-out at WWE events, it will direct its fans to the StubHub marketplace.  In all likelihood, StubHub will provide the WWE with consumer data from those that purchase on its site so that the WWE can use the information for marketing and promotion purchases.

Bellator: NYC to have suggested price tag of $49.99

March 28, 2017

Scott Coker revealed on The MMA Hour with Ariel Helwani that Bellator:NYC, the company’s second PPV will be priced at $49.99 HD.

It is the company’s second stab at having its product on PPV and is headlined by a grudge match between Chael Sonnen and Wanderlei Silva.  Also, Fedor Emelianenko will face Matt Mitrione in the co-main event of the show.  Bellator 120, the company’s first PPV, had a price point of $30-$45 depending on the satellite or cable company.

Similarly, despite the announcement of the suggested retail price of $49.99, a provider may raise the price.

For those wondering, the UFC will have a PPV on June 3rd, UFC 212 featuring Jose Aldo taking on Max Holloway.  The day after Bellator:NYC on June 24th, the UFC is having a Fight Night the day after on FS1.

Payout Perspective:

With the UFC PPV’s priced at $59.99 HD, having its PPV $10 less is advantageous for those that are not huge followers of the Bellator product.  While there are hardcore MMA fans that would purchase the event no matter what the cost, the $49.99 price point is something of a price break for those on the fence about spending more money on PPV.

GGG-Jacobs replay draws 709,000 viewers

March 28, 2017

The replay of the Gennady Golovkin-Daniel Jacobs fight on HBO Saturday night drew 709,000 viewers according to Sports TV Ratings. The rating encompasses the entire 2 hour block which also included the Roman Gonzalez upset by Srisaket Sor  Rungvisai.

The event drew 287,000 viewers in the adult 18-49 demo.  The event aired from 10:00-12:00am on Saturday night.

In comparison, the PPV replay of GGG-David Lemiuex on HBO from October 2015 drew 1.07 million viewers.  This time around, GGG did more PPV buys (170K) than against Lemieux (153K).

The ratings are a shadow of GGG’s last time on HBO.  Of course, those were live events.

GGG Fights on HBO

May 2014 vs. Willie Monroe, Jr. 1.338M viewers (fight only)

November 2013 vs. Curtis Stevens 1.41M viewers (fight only)

July 2104 vs. Daniel Geale 984,000 viewers (overall show drew 758,000)

October 2014 vs. Marco Antonio Rubio 1.3M viewers (fight only)

February 2015 vs. Martin Murray 862,000 viewers (fight only)

April 2016 vs. Dominic Wade 1.325M (fight only)

Payout Perspective:

The replay may be down due to the NCAA Basketball tournament airing the same night. We note the Kansas Oregon game aired on TBS from 8:40-10:55pm and was the highest-rated sports program on Saturday drawing over 9.3 million viewers and 3.5 in the A18-49 demo.  Otherwise, the lower ratings are surprising for a GGG fight and an event that had two entertaining fights.

Quarry responds to Zuffa’s Motion for Summary Judgment of his claims

March 27, 2017

Attorneys for Nate Quarry have filed its Opposition Brief to Zuffa’s Motion for Summary Judgment to dismiss Quarry’s claims in the antitrust lawsuit filed in Nevada.  Quarry’s lawyers argue that while his last contract was in 2010, the harm to Quarry arose out of Zuffa’s scheme as a whole.

Quarry’s attorneys note that the former UFc fighter was “injured” during the limitations period – the four-year period between December 16, 2010 to December 16, 2014.  Among the claims is that he has not been paid from Zuffa during the period and continues to receive no payment from Zuffa’s “ongoing use of his image and likeness.”  Quarry notes that the use occurs through the use of his fights (including a bout while he was not with the UFC) on UFC Fight Pass and a highlight with Quarry’s likeness is in the video montage of the UFC PPVs.

While the UFC argues that the “express terms” of Quarry’s contract with the UFC show that his claims are time-barred by a statute of limitations.  However, Quarry argues that he can show evidence of affirmative “overt acts” taken by Zuffa with the use of his likeness/image still on Fight Pass.  Quarry’s attorneys state that fighters are not compensated for the use of their likeness/image on UFC Fight Pass and this is furtherance of the antitrust claims filed by Plaintiffs.

In addition, they cite posters autographed by Quarry from his title fight at UFC 56 on sale on the UFC web site store for $999.999 and $1,149.99.  He has not received compensation for these posters

Also of note, Quarry notes a document produced by Zuffa in discovery which allegedly accounts for uses of his image or likeness within the limitations period.

In opposing Zuffa’s argument that Quarry cannot show a continued violation of antitrust laws because of his own “receipt of benefits,” Quarry lawyers cite the Ed O’Bannon and Bill Russell cases brought against the NCAA for use of their images and likenesses.  Quarry’s lawyers note that the court rejected arguments that scholarship agreements by O’Bannon and Russell occurred much more than four years before their lawsuits were filed.  Quarry’s tie this ruling as similar to Quarry’s contract with the UFC and the continued use of his image and likeness on Fight Pass.  Notably, Boies Schiller, Zuffa’s attorneys here, was one of the firms representing the plaintiffs against the NCAA.

Quarry’s Opposition to Summary Judgment Motion by JASONCRUZ206 on Scribd

Payout Perspective:

The basic argument here is that Zuffa claims that Quarry’s lawsuit is barred by a 4 year statute of limitations since his contract with the UFC was in 2010.  However, Quarry argues that Zuffa is still using his likeness/image through UFC Fight Pass and selling his autograph on the UFC web site.  It is ironic that Zuffa’s attorneys have been on both side of this argument and will be interested to see how they respond.

Lesnar files own Motion to Dismiss Hunt lawsuit

March 27, 2017

A day after Brock Lesnar was officially served the lawsuit filed by Mark Hunt, his attorneys have filed a Motion to Dismiss the lawsuit.  Howard Jacobs, the California attorney specializing in drug testing and represented Lesnar in his case against USADA, is also representing him in this lawsuit.

Lesnar has joined the UFC and Dana White’s Motion to Dismiss which was filed last month and provided its own briefing specific to Lesnar’s case.  The first matter Lesnar’s motion argued was that Hunt’s RICO violations were not sufficient to stand against Lesnar.

Specifically, it joins the UFC/White’s argument regarding the perceived missteps by Hunt in stating that he lacks “standing” – essentially the legal right, to pursue a Civil RICO Claim.  Here, Lesnar highlights that Hunt’s damages are speculative at best.  He also identifies that Hunt does not show the requisite steps needed to uphold a Civil RICO claim.  Essentially, there is no “pattern of racketeering activity” by an “enterprise.”

Lesnar’s attorneys state that Hunt’s claim is “so incredibly deficient” as to the WWE superstar that “it is difficult to know where to event begin.”

The motion argues that Hunt’s complaint as to the RICO violation does not show an existence of a RICO conspiracy.  Basically, Lesnar contends that you cannot simply allege a conspiracy violating the RICO statute just because there are multiple allegations.

Payout Perspective:

Lesnar’s Motion to Dismiss was obviously premeditated prior to service on the WWE sports entertainer.  The motion details the deficiencies that may likely halt the lawsuit before it begins with respect to the Civil RICO claims.  The motion identifies for the court the issues it has with claiming that there was a conspiracy set forth by the UFC, White and to his extent, Lesnar.  If nothing else, we might see the court dismissing the Civil RICO claim as to Lesnar.  MMA Payout will have more on this.  Stay tuned.

WWE and Foot Locker collaborate for limited edition sneakers

March 26, 2017

As we roll into Wrestlemania week, the biggest event of the year for the company, it announced a special collaboration with Puma for WWE-inspired footwear.

Announced last week, Foot Locker will release a collection of Puma products featuring six WWE legends including “Stone Cold” Steve Austin , Ric Flair and The Undertaker.

Via WWE:

For its first WWE product drop, Foot Locker will release a collection of Puma products designed by Alexander John, featuring exclusive art of six WWE legends: “Stone Cold” Steve Austin, The Ultimate Warrior, “Macho Man” Randy Savage, Ric Flair, André the Giant and The Undertaker.

The collection will include 600 pairs of WWE-inspired white Puma Clydes – 100 pairs per legend – in custom boxes. Additionally, 23 pairs of black Puma Clydes will be sold, touting Undertaker imagery and packaged in a collectible casket. The WWE legends will also be featured on exclusive Puma T-shirts.

The new collection will be exclusively curated by renowned DJ, host and WWE enthusiast, Peter Rosenberg.

In celebration of WrestleMania 33, Foot Locker will sell the WWE-licensed product in 33 select Puma Lab Powered by Foot Locker locations around the country, slated to hit stores on Saturday, April 1, one day before the big event.

Payout Perspective:

These shoes are for the diehard WWE fans or sneakerheads looking for something original and unique.  The release is a reflection of the WWE’s ability to partner with brands that cater to demos it wants to attract.  The limited nature of these shoes will ensure a sellout and while they won’t be as coveted as a Jordan release, fans will clamor for them as this is one of the bigger weeks for pro wrestling.

Show Money Episode 15 talks Mayweather-McGregor, Bellator, WME-IMG, Hunt-UFC and more

March 26, 2017

We’re back: Gift and Nash of Bloody Elbow and yours truly discussing Mayweather-McGregor, Bellator, WME-IMG, Hunt-UFC and I get mad at a judge.

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