Intellectual Property Attorney

Professional Wrestlers Face Possible Copyright & Trademark Issues

In a recent article, Sports Illustrated® reported that the professional wrestler known as the “Undertaker” will be appearing at the Starrcast II wrestling convention in Las Vegas this upcoming May. While this may come as a welcome surprise to many wrestling fans, it has apparently raised a few eyebrows at World Wrestling Entertainment, Inc. (“WWE”) – the professional wrestling promoter to which the Undertaker has been signed since 1990.  In reviewing the Starrcast II website, however, it appears that the Undertaker is not the only WWE wrestler appearing at the Starrcast II event. This raises interesting trademark and copyright issues which are discussed below.

Factual Background:

The Starrcast II website features images / names of several WWE wrestlers. Most notably, this includes:

  • An image of Mark Calaway in costume as the “Undertaker” character – complete with his iconic, wide-brim hat and leather jacket. This image includes the words “Mark Calaway AKA” in small font with the words “THE UNDERTAKER” in large, bold font. A copy of this image is shown below:
  • An image of Richard Fliehr (a/k/a “Ric Flair” a/k/a “Nature Boy”) in a suit jacket holding a championship belt over his shoulder. The image includes the words “Nature Boy” in small font with the words “RIC FLAIR” in large, bold font. The image also includes the words “16 X WORLD CHAMP / 2X WWE HALL OF FAMER” in small font. A copy of this image is shown below:

Indeed, the image below shows an enlargement of the championship belt held by Mr. Fliehr in this photograph. As can be seen from this enlarged image, Mr. Fliehr appears to be holding a WWE championship belt. Indeed, the WWE’s stylized “W” trademark appears to be prominently engraved on the top portion of the belt.

  • An image of Steve Borden in costume as the “Sting” character – complete with his signature face paint. The image includes the words “WWE HALL OF FAMER” in small font above the word “STING” in large, bold font. A copy of this image is shown below:

Copyright Law Issues:

The intellectual property rights associated with professional wrestling are often a complicated mixture of trademark and copyright law – further complicated by the various contracts negotiated between wrestlers and wrestling promoters.

With respect to copyright rights, the various “character personas” adopted by professional wrestlers often include complicated backstories and unique makeup / costumes. Such character personas should be eligible for copyright protection and should be the property of the WWE (if they were developed during each wrestler’s tenure with the WWE and the WWE was prudent in having wrestlers sign the appropriate “work for hire” copyright paperwork). Moreover, unlike “real” sporting matches, WWE events are choreographed, scripted shows. The WWE is well known within professional wrestling for its complicated, theatrical choreography and the humorous feuds / dialogue between various wrestling characters. Such scripting / choreography should also be protectable under copyright law.

That being said, many aspiring professional wrestlers form character personas themselves while trying to land their “big break.” After signing with a promoter such as the WWE, such wrestlers sometimes keep these same personas; “supplementing” their character traits as called for by the promoter’s scripting. This raises an interesting question of whether various specific performers ever assigned their pre-existing copyright rights in their characters as a condition of joining the WWE.

Bottom line: it would take a careful review of the history surrounding and performer contracts signed by these wrestlers and the WWE to determine the copyright ownership in their character personas.

Trademark Law Issues:

With respect to trademark rights, the WWE is a renowned merchandising power-house which routinely secures numerous trademark registrations covering the various wrestling characters in its roster.

Regarding the wrestlers appearing at the Starrcast II event noted above, we conducted quick “knock out” searches of the U.S. PTO’s Trademark Electronic Search System and found that the WWE currently owns the following relevant registrations:

To complicate matters, however, our search also revealed that:

  • Mr. Borden himself owns a registration for STING (Reg. No. 1953039) in Class 41; and
  • Ric Flair, LLC – presumably Mr. Fliehr’s company – owns a registration / pending applications for:

In other words, it appears that some of the character names used in the Starrcast II promotional images shown above are owned by the WWE while others are owned by the wrestlers themselves.

Again, it would take a careful review of the history surrounding and the performer contracts signed by these wrestlers and the WWE to determine the trademark ownership regarding their character names. That being said, the Trademark Office’s records suggest that:

  • the “UNDERTAKER” brand is owned by the WWE;
  • the “STING” brand is owned by Mr. Borden; and
  • the “RIC FLAIR” brand is owned by the WWE while the trademark rights in Mr. Fliehr’s “NATURE BOY” persona are owned by himself.

Unsurprisingly, sources report that the WWE is “not happy” about the upcoming Starrcast II appearances. In our opinion, depending on how the performer’s contracts with the WWE were drafted, the:

  • widespread use of the word “WWE” (and even the WWE’S stylized “W” logo as it appears in the championship belt held by Mr. Fliehr); and
  • use of various WWE trademarks in connection with potentially copyrighted character content;

might give the WWE a cause of action with respect to the Starrcast II event listing. That being said, the WWE finds itself between a proverbial “rock and a hard place.”

On the one hand, the Undertaker, Ric Flair and Sting are some of the most beloved professional wrestling characters in history with highly devoted fanbases. For example, the Undertaker’s twitter account has over 74 thousand followers, Sting’s has over 630 thousand followers and Ric Flair’s twitter account has over 1 million followers. A few negative social media posts from these wrestlers about alleged “mistreatment” by the WWE could do much to damage the WWE’s image amongst fans.

On the other hand, the WWE has a responsibility to protect its intellectual property from unauthorized third party use. Otherwise, the WWE could face a loss of rights. There are also practical, business reasons for enforcing rights. This is especially true of the “Undertaker” character – one of the biggest names in the history of professional wrestling and a valuable franchise for the WWE. If Mr. Calaway is allowed to appear in-character and in-costume at wrestling conventions, should he also be allowed to wrestle in-character and in-costume for other promoters? Where should the WWE draw the line?

Grimes LLC will continue to monitor this developing situation.

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