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.