How does a game of cricket give rise to a range of intellectual property and Australian Consumer Law issues?

First a bit of background

Australian cricket fans were bowled over this week after hearing comments Chris Gayle made to Channel Ten reporter Mel McLaughlin during a live sideline interview.

For those who are not cricket fans - Chris Gayle (nicknamed The Gayle Force) is a West Indian cricketer who is regarded as one of the most explosive, big hitting and flamboyant batsmen in modern-day cricket. He is arguably equally famous for his big personality and characteristic ‘Jamaican coolness’ on display both on and off the field (think: Jamaican accent, dreadlocks and dark sunglasses).

Last week Gayle’s antics had him on the back foot after he delivered a series of cringe-worthy one-liners during a live television interview to a visibly uncomfortable McLaughlin in an attempt to ask her out on a date, culminating with the now infamous line - "Don't blush, baby”.

What does this have to do with IP?

It’s not so surprising that Gayle’s wrong ‘un drew widespread and justified criticism.

What has come as a bit of a surprise however is that Gayle’s comments have not only gone viral on social media, but that a number of products, mainly T-shirts, have surfaced at a handful of independent online retailers and physical shops. These T-shirts, retailing for about $30, variously feature images of Chris Gayle alongside the quote ‘Don’t blush, baby’ written in a prominent typeface.

In addition to the obvious questions of decency, the sale of such T-shirts raises several IP law issues, namely:

  1. Copyright infringement. The reproduction of a copyright work (including an image) without the authority of the copyright owner constitutes copyright infringement in Australia. If sellers have used photographs of Chris Gayle that are sourced from third parties (such as official team photographs) without obtaining a copyright licence, infringement of copyright is likely to be established.
  2. Breach of the Australian Consumer Law. Under the Australian Consumer Law, a person “must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive”. The use of images of Chris Gayle alongside a direct quote from him may be construed as a representation that that the seller and the T-shirt have the approval of, or an affiliation with, Chris Gayle, thereby breaching the Australian Consumer Law.
  3. Passing off. The tort of passing off prohibits a person from “passing off” their goods as the goods of a third party. The sale of such T-shirts may be seen as an attempt to unfairly capitalise upon Gayle’s reputation in order to derive a significant commercial benefit. Whether misleading and deceptive conduct and passing off have occurred will hinge upon several factors including evidence as to what consumers are likely to perceive, and will ultimately be a question to be referred to the third umpire.
  4. Right of publicity. Had this scenario played out in the United States, a further issue to consider would be the right of publicity. This is a US doctrine which confers a proprietary right to individuals to protect and control the commercial use of their identity. There is however no equivalent right under Australian law, although parts of the Australian Consumer Law and the tort of passing off (discussed above) achieve a similar aim.
What happens next?

Gayle has shown himself to be a big hitter both on and off the field, with reports this week that he has instructed lawyers to commence defamation proceedings in respect of comments made in the media arising out of this incident.

It’s unclear whether the sellers of these T-shirts are playing with a straight bat or have actually been caught out in the slips doing something they shouldn’t be. In any event, Gayle is unlikely to take any formal action against these sellers even in light of his recent willingness to sue, as the commercial value of doing so is likely to be minor.

This incident however does underscore the importance of performing IP due diligence before launching products. Riding the wave of the latest thing to go viral can be a successful business strategy but must be done with caution as infringing someone’s intellectual property rights is just not cricket!


Samin Raihan
Lawyer

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