Does Fake Bo Pelini violate the real Bo Pelini's rights of publicity?

Rights of publicity protect a person's exclusive right to license their likeness to whom and on what terms they choose. This is at the heart of the NCAA student-athlete likeness antitrust litigation, because intercollegiate athletics may be the only place where this right is irrevocably transferred to the NCAA and its member institutions.

Fake Bo Pelini is a Twitter account designed to poke fun at the real Bo Pelini's sometimes surly and obstreperous nature. If the Fake Bo Pelini generates money from the use of Bo Pelini's likeness, he could be violating Pelini's rights of publicity. This does not appear to be the case.

The "Bo Pelini Foundation" is a registered trademark, but "Bo Pelini" is not. If "Bo Pelini" were a registered trademark or it was used on or in connection with goods or services, Pelini could not sue for trademark dilution, because Fake Bo Pelini is a parody account. If Fake Bo Pelini was not a parody and "Bo Pelini" were a registered trademark or used on or in connection with goods or services, then Pelini could sue for trademark dilution.

If fired for the 2011 audio tape, Nebraska football coach Bo Pelini has a claim for business interference.

In October 2011, University of Nebraska head football coach Bo Pelini delivered a post-game press conference shortly after his team completed the biggest comeback in school history. Nebraska had just defeated Ohio State, 34-27, after being down 21 points in the second half. In an off-the-record conversation prior to the press-conference, Pelini lambasted the fans who left the game early, and journalists from the Omaha newspaper. Pelini's comments included numerous instances of the "f-word." They were ill-advised, and some people are understandably offended.

Basically, Pelini called Nebraska fans "fair-weather," which is completely untrue. If there is any fan-base that is not "fair-weather," it is Nebraska football fans. The team has been mostly successful for the last 50 years, but it has also sold out every home game since 1962. No other school comes remotely close. Even in down years, the fans still show up for games. The anger toward the journalists was for leaving press conferences early.

This past Saturday, on September 14, 2013, Nebraska lost to UCLA, giving up 38-straight points in the process. Within the next two days, audio tape of the October 2011 off-the-record conversation was released to the media. If Pelini is fired for his comments in the audio tape, he can sue the person who released the tape for business interference.

Surely, Pelini's contract has a "morals clause" that might justify dismissal for those type of comments. But even if the school has cause for firing Pelini, the person who released the tape does not have the right to release the tape for the purpose of getting Pelini fired.

If the audio tape had been released shortly after the tirade occurred, there would not necessarily be a claim, because the motives of the person who released the tape would not be so clear. But two years after the fact and after a bad loss at home, the person's motives could not be clearer. The person wanted Pelini fired, and any jury could see this. Business interference requires:

(1) a contract;

(2) that a defendant has knowledge of the contract;

(3) that the defendant intentionally and improperly interfered with the contract;

(4) the interference caused the third party not to perform or to stop performing the contract; and

(5) that the plaintiff was damaged.

The person who released the tape surely knew that Pelini has a contract with the school. Releasing the tape to get the coach fired constitutes "improper interference." If Pelini is fired, he could recover the amount he would earn if there had not been improper interference, i.e., if the tape had not been released for the purpose of getting him fired. He could not recover that amount from the school, but from the person who released the tape. Accordingly, the person who released the tape could be liable for millions of dollars of actual damages, as well as punitive damages if his or her conduct is deemed particularly willful and wanton.

Whether Pelini can recover depends on if he loses his job due to the audio tape. In another post, I warned readers of the ease with which you can be guilty of business interference.

A trademark dispute in Cornhusker country.

This is not an unusual situation with businesses in college towns, especially when a college mascot is named after the official state nickname (e.g., "The Hawkeye State"). The article describes a dispute between the University of Nebraska athletic department and a local Lincoln business owner. The business owner used the word "Husker" in his bar name, and the University does not want to be associated with it. As you would expect, the University has trademarks on the terms associated with the school's athletic programs. When it does attach its name to a local business, it charges a fee to do so.

The article is another example of the headaches that result from choosing a business name that is a federally registered trademark of another company. When you go to college towns, you will often see "Husker," "Cyclone," "Hawkeye," or another nickname on a business unrelated with the local school. The nickname you see depends on the town you are visiting. Business owners that choose such names should be careful, because the school can make them change it if they want. The school does not always do so, because they do not want to upset the same people who support the sports programs. But they can.