Burger King, Stevenage and my FIFA confusion
As an IP lawyer fascinated by the interaction between sports, esports and gaming, it is no surprise that the story of Burger King’s Stevenage FC campaign caught my eye. “Turn a small team in the real world into the biggest team online” was the strapline and the campaign playfully made use of Stevenage’s one star rating on the FIFA game. The idea was to encourage gamers to play as Stevenage in FIFA, wearing one of two Burger King-sponsored kits, and to complete challenges in the game while wearing the kits, sharing clips online with the hashtag #StevenageChallenge. The campaign seemed to be a great success, making Stevenage the most played with team on FIFA’s career mode across the two week period it was running.
There was a video showing the likes of Mo Salah, Ronaldo and Messi wearing the BK-sponsored Stevenage shirts, with an excerpt of the “Zadok The Priest”-inspired Champions League music. The video also showed players’ avatars in the game in licensed club kits, complete with club shirt sponsor branding.
But hang on for a moment. I was nonplussed. While I could probably get my head around EA possibly allowing the use of FIFA gameplay in advertising, the players surely wouldn’t allow the use of their images, and the clubs would not allow the use of their kits in a promotion by an unrelated brand.
But, briefly, what rights are we talking about here? Well, on the player side, their likenesses may be protected – depending on the relevant jurisdiction – under rights of publicity, or under passing off or similar unfair competition laws, as well as under certain advertising regulations. Clubs kits may be protected by certain rights in designs or again under passing off, and sponsor names and logos may be protected as trade marks. Copyright in the musical recording is owned by UEFA.
Then it clicked that the video I was watching, widely shared on social media, was actually a promo from Burger King’s agency for awards season. I then managed to dig out the original Burger King video, which was understandably far more cautious in terms of third party rights (you should be able to see this video below). So, Messi, Man City and co can stand the lawyers down.
IP issues aside, the campaign is a great example of how the sport and gaming worlds interlink and how a smart sponsor, well advised, can draw the two together. It's also really refreshing to see a sponsor working to raise a club's profile rather than vice-versa.
