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Guardians of the Game: Protecting Image Rights in Sports

Written by Martin Dahl Pedersen & Kathrine Kjær

Kromann Reumert

Martin Dahl Pedersen

Kathrine Kjær

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In today's digital age, safeguarding image rights has become increasingly important. Especially social media has made it easy to use and misuse others' images without consent. This has led to several legal disputes over the past years, highlighting the importance of protecting image rights.

But what exactly are image rights?

Known by different names across jurisdictions - publicity rights in the United States, personality rights in Europe, and image rights in the United Kingdom - the concept remains the same. Image rights allow individuals to control the commercial use of their identity, including photos, names, and nicknames. Essentially, any commercial use without consent is illegal.

In the sports industry, the protection of image rights is crucial. As the popularity of athletes increases, it becomes more and more important to safeguard their personal and commercial rights. Famous athletes are in fact celebrities, and maintaining control over their image rights is essential for protecting their reputation and securing lucrative sponsorship agreements. Therefore, athletes must have the exclusive right to control the advertising value associated with their image.

A recent Danish lawsuit involving famous athletes and the betting company Bet365 highlights the significance of image rights in sports. The case raised significant questions about the distinction between commercial and editorial use of photos on social media and the proper level of compensation for such uses.

In this article, we will delve into the details of the lawsuit and the judgment in this case.

The Facts of the Case

On 11 January 2022, several Danish athletes filed a lawsuit against Bet365. These athletes, all famous elite sports figures in Denmark - including football player Christian Eriksen, handball player Mikkel Hansen, and badminton player Viktor Axelsen - claimed that Bet365 had violated their image rights by posting their photos and names on social media without their permission.

The case cantered on two key questions:

Were the posts on Facebook and Twitter commercial or editorial?
Were the athletes entitled to compensation, and if so, how much?

Commercial use

The athletes argued that Bet365 had used their photos and names to promote its betting business and sports events, making the posts commercial. To support this, the athletes argued that their photos and names had been used in posts about sports events taking place on the same day.

Bet365, on the other hand, claimed that the posts were editorial. Bet365 argued that the photos and names had only been used to report news about sports events, and that their social media profiles in fact functioned as forums for sports enthusiasts, allowing them to debate upcoming sports events and topics. Thus, the use was purely editorial.

Additionally, Bet365 argued that social media represent a new and different way of communication for companies. Therefore, broader guidelines should apply as to how companies can promote themselves on social media, and such promotion should be protected as part of their commercial freedom of speech.

Compensation

With regard to compensation, the athletes demanded DKK50,000 per post. The athletes argued that involuntary association with a betting company could damage their image. Furthermore, they argued that it would harm their sponsorship agreements if some companies could use their photos for free while other companies had to pay for the use.

They further emphasized that all athletes could have received at least DKK50,000 for a social media post if they had entered into a sponsorship agreement.

Bet365, on the other hand, argued that the athletes should not be awarded compensation, and that a compensation payment of DKK50,000 was, in any case, too high when compared to previous rulings. Additionally, Bet365 emphasized that most people only view social media posts for a few seconds, as they typically scroll through social media posts without fully seeing or digesting the content.

The Maritime and Commercial Court's Judgment

On 8 May 2023, the Danish Maritime and Commercial Court ruled in favour of the athletes. In its judgment, the Court stated that all posts were commercial and part of Bet365's marketing strategy.

Furthermore, the violation was deemed intentional, and therefore, the athletes were entitled to compensation. The evidence presented during the case included testimonies from the athletes, making it clear that each athlete could have demanded at least DKK50,000 per post if they had entered into a sponsorship agreement with a paying company.

Based on these testimonies, the significant advertising value of the athletes, and the nature and extent of the violation, the Maritime and Commercial Court awarded each athlete DKK50,000 per post.

The Eastern High Court's Judgment

In May 2023, Bet365 appealed the case to the Danish Eastern High Court, and almost one year later, on 8 July 2024, the Court delivered its judgment.

The Eastern High Court upheld the Maritime and Commercial Court's judgment, stating that the use of photos and names was commercial and that there was no basis for reducing the compensation. The Eastern High Court also ruled that the fact that the athletes' rights were deemed to have been violated did not infringe on Bet365's commercial freedom of speech.

Key takeaways from the judgment

The Eastern High Court's judgment serves as a powerful reminder of the importance of protecting image rights in sports, ensuring that athletes maintain control over the presentation and commercial use of their identity. But more importantly, the judgment sets a new standard for compensation in such cases.

With this judgment, the level of compensation for such violation has been increased in Denmark. In similar previous cases, Danish athletes have been awarded lower compensation payments. In a judgment from 2017, the Maritime and Commercial Court, awarded a group of Danish athletes compensation in the amount of DKK250.000 for violation of their image rights. The total compensation was to be shared among eight athletes, resulting in a relatively small payout. The compensation amount was subsequently reduced to DKK125.000 by the Western High Court in 2018.

With the aforesaid judgment, however, the Eastern High Court establishes that the level of compensation in such cases should generally be higher.

Disclaimer: The authors of this article represented the athletes in the case during both trials.

Martin Dahl Pedersen works within the IP, Media and Entertainment Group of Kromann Reumert, a leading law firm in Denmark. Mr Pedersen became a partner there in 2002. He has many years' experience advising clients in the broad media and entertainment field, partic edia conglomerate Aller Media in a controversial principle matter on the protection of journalistic sources in a case where Aller Media is facing criminal charges for abuse of information on celebrities' credit card transactions.

Kathrine Kjær is an Assistant Associate at Kromann Reumert and specialises in intellectual property law, including sport, media, and entertainment law. Kathrine is finished her Master of Laws degree at University of Copenhagen in 2022.

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