Have you ever heard of Steve Nash? Sound familiar? That’s because we all know him as one of Canada’s finest, a basketball player from Victoria, B.C. who made it big in the mid-’00s playing for the Phoenix Suns. The NBA legend was an eight-time All-Star and retired last year with plenty of celebrity leftover, and now that fame is the subject of a recent court case.
Nash has been in the news for filing a civil claim against some of his former business partners from a past business venture related to gyms. He wants his name and face removed from the front of Steve Nash Fitness World & Sports Club. Back in 2007, Nash helped open the chain that is now 21 gyms strong, but sold off his shares in 2014. He hasn’t received compensation for the continued use of his brand since, and is now seeking a ban and damages.
The issue might have arisen in relation to trouble with one business partner in particular, that being Mark Mastrov. In 2013, Mastrov bought into partial ownership of the Sacramento Kings. At the same time, Nash was still playing with the Los Angeles Lakers. The NBA has strict rules its members and associates must follow, and one of those is that team owners and players are not supposed to be involved in business with one another. To prevent a conflict of interest because of Mastrov’s move, Nash exited the business arrangement (one that was supposed to have lasted until 2022) by quickly selling his shares.
Since the case is a new one, it has yet to be considered by the courts. One point that the court will most likely consider is how to treat Nash’s celebrity status. What sort of intellectual property rights does Nash have to the representation of his own person? Does Nash even have a case to preserve and protect his person?
Fortunately for him, there is a wealth of Canadian case law on the matter of what can be termed “appropriation of personality.” In Athans v. Canadian Adventure Camps Ltd. (1977) (ONSC), plaintiff George Athans Jr., a renowned professional skier, sought an injunction and damages because a picture of him skiing was reused without his permission on the front of a camp brochure. While his particular claim of injunction was deemed unwarranted because the reproduction was not particularly recognizable as him, it was determined that people do have exclusive proprietary rights towards their image and personality.
The circumstances during which proprietary rights to personality can be violated were later clarified and better defined in the case of Gould Estate v. Stoddart Publishing Co. (1999) (ONSC). This case disputed the publishing of a book of photographs and conversational excerpts from 1956 between famed classical pianist Glenn Gould and journalist Jock Carroll. Gould’s estate had not consented, nor received any royalties. A distinction was made about “sales vs. subject” here, and is described as follows: “Sales, where the identity of the celebrity is used, constitute commercial exploitation and invoke the tort. In contrast, where the celebrity is the actual subject of the work and the work is an attempt to provide some insights about the celebrity, the work does not invoke the tort.” As a result, the estate’s case was dismissed.
Applying this principle to Nash’s case, he may stand a chance to get the outcome he wants. The use of his name and image has a commercial bent, quite like the example the judge used in the Gould reasoning of Elvis merchandise. The gym chain is not like the book on Gould, meant to offer the public a way to learn about Steve Nash himself.
“Fitness World & Sports Club” sounds pretty underwhelming on its own, so if this case goes in favor of Nash they better be on the scramble to re-brand!
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