Wednesday, November 19, 2008

NASCAR and publicity rights

Dear Rich: I have a question. I am starting a fan club for a local racer under his parents' request, and this kid is going to make it big. We have already been invited to NASCAR, but that will be at least 3 years away. His family and I want to protect any merchandise from being pirated and his name being used without his permission. We want exclusive rights to produce any merchandise with his name, car, logo, or anything associated with him. What do we do to make sure that he reaps all the profits and not someone just looking to strike it rich off of his fame?  The short answer to your question is that there's no short answer. The local racer -- assuming he's over 18 -- controls all rights to his own publicity or merchandise under legal principles known as the "right of publicity." (If the racer is not over 18, the parents and the racer can sign over these rights, but the Dear Rich staff recommends a new agreement be made once the racer reaches the age of majority.)  So, it's up to him to decide who has the right to use his image and name, and it's up to him to pursue the bad people who use those rights without permission.
Once he enters the world of NASCAR, he will probably be required to assign (give up) most of those rights to NASCAR and his sponsor. NASCAR drivers make money in three ways: they get a percentage of prize money, a percentage of merchandise sales, and earn money from personal endorsements. It's all part of the modern racing world. (BTW, here's a blog where you can learn a lot of fascinating stuff about the business of NASCAR.)  There's an upside to these deals as well, since the team sponsor or NASCAR will be out there purusing the bad guys (which can be very expensive and time-consuming). Also, keep in mind that should this racer become a superstar, he will be able to set the terms of the deals and choose his sponsors.