Chapter 1 Introduction
Macroscopic background and practical significance
In the era of the intersection of the modern digital economy and the global sports industry, well-known athletes have completely transcended their status as pure sports competitors in the traditional sense and evolved into super intellectual property (IP) with huge commercial appeal and social influence. Athletes' names, portraits, physical characteristics, iconic movements and even competitive data all contain immeasurable economic value. As China's sports industry transforms from a traditional "nation-wide system" to a highly market-oriented and professional one, the commercial value of sports events has shown explosive growth, followed by the normalization of athletes' personality characteristics being deeply commercialized. However, the rapid expansion of commercial interests is inevitably accompanied by the blurring of rights boundaries and conflicts in the distribution of interests. Unauthorised use, excessive consumption and even malicious squatting of athletes’ personality traits in virtual spaces, commercial advertisements, sports derivatives and electronic games are endless. This chaos not only infringes upon the legitimate rights and interests of the athletes themselves, but also greatly disrupts the order of fair competition in the sports industry.
In this context, the issues of ownership, exercise and legal protection of athletes’ commercialization rights have become increasingly prominent. On the one hand, huge commercial sponsorships, event broadcasts and peripheral product development urgently require a clear rights authorisation chain; on the other hand, the current legal system still shows a certain lag and insufficient institutional supply when dealing with new challenges such as "the conflict between collective image and personal portrait", "the balance between national training costs and personal commercial gains" and "artificial intelligence (AI) deep forgery". Therefore, the construction of a legal protection mechanism for athletes’ commercialization rights that is in line with modern civil law principles and the special national conditions for the development of China’s sports industry has become a core proposition that needs to be solved urgently in the legal academic and sports practice circles.
Research approach and logic
This study is based on the dual dimensions of legal doctrine and legal sociology, and based on the personality rights section of the Civil Code of the People's Republic of China (hereinafter referred to as the "Civil Code") and related intellectual property legal norms, it systematically analyzes the dual attributes of athletes' commercialization rights. By sorting out cutting-edge judicial adjudication rules such as the Supreme People's Court and the Guangzhou Internet Court, and combining the mature experience of developed countries and regions such as the United States, the European Union, and Japan, we will deeply explore the alienation and reconstruction of commercialization rights in the digital economy era. The logical starting point of the research is conceptual definition and theoretical root-seeking, and then transitions to the examination of current norms and empirical analysis of typical cases, and finally settles on the resolution of institutional conflicts and the macro-construction of future institutional improvements.
Definition of core concepts
The concept of "Merchandising Right" is not a traditional statutory concept, but a mechanism for judicial practice to confirm the commercial value contained in real people or virtual characters in commercial activities. In British judicial practice, the right to commercialization was first regarded as a commercial expansion of citizens' "right to privacy"; after being introduced to the United States, and following the evolution of the famous "Haelan Laboratories v. Topps Chewing Gum" case in 1953, it was finally established as the "Right of Publicity", marking the official entry of the right to commercialization into the field of legal scholarship.
In 1994, the World Intellectual Property Organization (WIPO) made an internationally recognized definition of "character commercialization" in the "Character Commercialization Report": it refers to the use or development of the important character characteristics of the character in products or services by the rights holder, with the intention of stimulating the corresponding customer's desire to purchase and making them purchase related products or services because they like the character. From the perspective of object scope, commercialization rights cover two categories: virtual characters and real people. Focusing specifically on the field of sports, athletes are real people, and the core connotation of their commercialization rights is: the exclusive rights that well-known athletes enjoy to commercialize and obtain economic benefits from their names, portraits, images, voices, data and other personality traits that contain huge commercial value.
Chapter 2 Theoretical Basis and Typical Analysis of Athletes’ Commercialization Rights
The dispute over the legal attributes of commercialization rights
Regarding the legal nature of athletes' commercialization rights, there have been fierce theoretical conflicts in the academic community for a long time, and three representative theories have been mainly formed, which directly affect the choice of relief paths in judicial decisions.
One is the theory of personality rights (commercial personality rights theory). Traditional civil law theory strictly distinguishes between personality rights that protect ethical values and property rights that protect material interests. With the evolution of commercial society, scholars such as Professor Wang Liming and Professor Yang Lixin proposed that the right of image (commercialization right) is essentially a specific personality right for civil subjects to exclusively enjoy, use and obtain corresponding benefits from the image and personality interests that represent their personality characteristics. This theory believes that commercialization rights are an extension of name rights and portrait rights in the commercial field, and fall under the category of "commercial personality rights." However, there are logical paradoxes in the pure theory of personality rights in explaining the "blanket" transfer of rights and inheritance after death, because personality rights are exclusive and inalienable.
The second is the theory of property rights. This theory draws on Locke's theory of labour property rights and believes that the image value of a well-known athlete is the result of long-term hard training, excellent competitive performance and financial investment. This huge economic value condensed in names and portraits has been separated from the pure spiritual personality of natural people and alienated into an intangible independent property. Supporters argue that commercialization rights are fully inheritable and transferable, and that remedies when they are infringed should be limited to material damages.
The third is the mixed rights theory (dual attribute theory). This study believes that neither the isolated personality rights theory nor the property rights theory can perfectly fit the complex reality of athletes' commercial development, and a hybrid rights theory based on the "rights separation theory" should be adopted. Athletes' commercialization rights have the dual attributes of personality rights and property rights, and are the product of the intersection of the two in the modern business environment. On the one hand, it takes intangible personal interests as the underlying object, has personal dependence, and protects the rights holder from reputation disparagement and dignity; on the other hand, it is embodied as a property value that can bring direct economic benefits, with relatively independent income rights and control rights, and is allowed to be transferred and inherited under certain conditions. This dual attribute determines that the right remedy must adopt a dual-track path of "compensation for mental damage + compensation for property interests".
Typed analysis matrix of athletes’ commercialization rights
In order to avoid the generalization of theoretical discussions, athletes’ commercialization rights must be carefully classified and dismantled according to the operating rules of the sports industry. This is not only a need for academic research, but also the basis for guiding the drafting and judicial adjudication of commercial contracts. The following table systematically presents the multi-dimensional typing analysis matrix of athletes’ commercialization rights constructed in this study:
Classification dimension
Specific types of rights/forms of expression
Core features and commercial application scenarios
Potential legal conflicts and regulatory difficulties
According to rights object
Right to commercialize name (real name, nickname, foreign language translation, signature)
Identify specific subjects and have powerful source identification function. Often used for brand naming and joint equipment sales.
Determining the correspondence between foreign language translations and Chinese names (such as the Jordan case); continued commercial development of names after retirement.
Right to commercialize portrait (static, dynamic, virtual image, silhouette)
The most intuitive external image representation of athletes. Commonly used in advertising posters, video endorsements, and NFT digital collections.
Determination of “recognizability” of silhouettes/contours; attribution of virtual digital human portraits generated by AI.
Image commercialization rights (iconic actions on the field, lifestyle off the field)
The expression of comprehensive personality traits beyond the specific face. Such as Bolt's "lightning" gesture.
Whether the iconic action constitutes an independent object of commercialization rights; the originality of the action and the risk of monopoly.
Sound and data commercialization rights (slogans, physical test parameters, competition records)
A core asset in the digital age. Used for video game parameter modeling (such as NBA 2K ability value) and sports betting data analysis.
The boundary between privacy protection and public data sharing; the characterization of grabbing public data for profit without permission.
According to usage
Use of physical and digital goods
Sports peripherals (jerseys, water cups), digital cards, and virtual idol licensing.
The boundary between fan-made peripherals and commercial development; the sharing mechanism for the secondary circulation of digital products.
Endorsements, Media Communications and Commercial Advertising
Reasonable use of social media commercial promotion (grass planting) and documentaries.
It is difficult to accurately define the boundaries of the media's tolerance obligations for "public welfare reporting" and "hidden commercial promotion."
According to rights subject
Individuals, clubs, leagues and national teams
The intertwining of fundamental rights of individuals and collective rights of organizations.
The exclusive conflict and distribution of interests between the national team’s image rights and players’ personal endorsement rights under the “nation-wide system”.
According to the protection path
Protection of personality rights, intellectual property rights, competition law, and contract law
Multi-jurisdiction collaborative protection mechanism.
The lack of unified specialized legislation has led to divergent decisions in the application of competition law and personality rights law by different courts.
Chapter 3 Review of China’s Current Legal Framework and System
China currently does not have a separate "Commercialization Rights Law" or "Regulations on the Protection of Athletes' Rights and Interests". Instead, it has built a protection network through various sections of the Civil Code, the Trademark Law, the Anti-Unfair Competition Law and the Sports Law. While this decentralized legislative model provides multi-dimensional relief, it also exposes the lack of subjectivity and systemic breaks in the current system when dealing with new digital sports formats.
The protection path of personality rights in the Civil Code and its expansion
The Personality Rights Section of the Civil Code, which will be implemented in 2021, marks that China's protection of the personality interests of natural persons has reached an unprecedented level, and also provides the most direct institutional soil for the legal survival of commercialization rights.
Articles 1012 and 1017 of the Civil Code grant natural persons extensive rights to their names, and specify that pen names, stage names, screen names, etc. with certain social popularity shall be protected with reference to the rights of their names. This establishes a basis for protection of athletes' nicknames (such as "Su Shen" and "Big Devil") and their foreign translations with stable corresponding relationships.
More important is the reconstruction of the definition of “portrait” in Article 1018 of the Civil Code. This article defines a portrait as "an identifiable external image of a specific natural person reflected on a certain carrier through images, sculptures, paintings, etc." This legislative breakthrough is far-reaching: it completely abandons the narrow perspective of "facial features" as the only identification criterion in the past, and turns to "recognizability of comprehensive external image" as the core. This means that even if the face is not exposed, highly specific silhouettes of sports postures (such as specific hurdle postures, shooting movements), as long as they are sufficient for the public to identify the specific athlete, can be included under the umbrella of portrait rights.
At the same time, Article 1023 stipulates the rules for the licensing of name rights and portrait rights. This not only recognizes the property interests and commercial transfer value contained in personality characteristics for the first time in substantive law, but also provides solid legality endorsement for the long-running image rights authorisation contract in the sports agency industry. In addition, the "actual losses or profits from infringement" compensation calculation rules established in Article 1182 of the Tort Liability Code enable athletes to obtain substantial economic compensation that matches the commercialization benefits when they suffer commercial infringement.
Supplementary protection under intellectual property law and competition law
Beyond the protection of personality rights, some malicious business practices aim to steal athletes’ business reputation and customer appeal. At this time, the Trademark Law and the Anti-Unfair Competition Law played an indispensable complementary role.
Article 32 of the Trademark Law, “Applications for trademark registration shall not infringe upon the existing prior rights of others” is the core provision to prevent celebrity name squatting. Judicial practice generally recognizes that the right of a natural person's name (including foreign language translation) belongs to prior rights. When a merchant registers the name of a well-known athlete as a trademark without permission with the intention of creating the illusion of endorsement, this clause can be revoked directly. In addition, the “other adverse effects” clause in Article 10 is often used as a cover-up tool to purify the trademark registration order involving celebrity logos.
Article 6 of the "Anti-Unfair Competition Law" prohibits the unauthorised use of other people's names, pen names, stage names and other signs that have certain influence, leading people to mistakenly think that they are other people's goods or have a specific connection with others. This provision breaks out of the framework of human dignity and directly addresses the key issues of "commercial logo confusion" and "unfair free riding", providing strong competition law protection for athletes' image elements that do not meet the trademark registration standards but have formed commercial value.
Revision of the "Sports Law" and the definition of intangible assets within the system
The newly revised "Sports Law" in 2022 made an ice-breaking provision in Article 52 of Chapter 4 Competitive Sports: "Without the permission of the organizers of sports events and other relevant rights holders, information such as pictures, audio and video of sports events may not be collected or disseminated for profit." The establishment of this "audio-visual information right of sports events" has legally confirmed the property attributes of live events, audio and video of the event. This directly affects the ownership of the control rights of athletes' dynamic images on the field, which means that in the field space, the commercialization rights of athletes' personal portraits must be competed and coordinated with the audio-visual information rights of event organizers.
However, there are still obvious gaps in the current system. The Sports Law fails to legalize “collective image rights”, a core concept that frequently causes controversy in the Chinese sports world. In reality, multiple administrative normative documents issued by the State Sports General Administration stipulate that part or all of the commercial personality rights of athletes trained by the state belong to the state. This administrative distribution model that emphasizes "who invests, owns" has, to a certain extent, severed the inherent connection between rights and natural persons, resulting in athletes having a weak say in the development of their own commercial value. It neither meets the inherent requirements of modern personality rights theory, nor adapts to the needs of the modern sports industry with the diversified influx of capital.
Chapter 4 In-depth empirical analysis of typical cases
By empirically analysing the landmark rulings of Chinese courts in recent years, we can gain a clearer glimpse of how legal rules on paper are activated, interpreted and reshaped in complex business practices.
Case 1: Michael Jordan v. Jordan Sports - the core establishment of the right to commercialize names
Facts of the case and focus of dispute: Jordan Sports Co., Ltd. has registered a large number of "Jordan" and a series of trademarks containing the silhouette of "Jordan" in China for more than ten years, and has widely used them on clothing, footwear and other commodities. After American basketball superstar Michael Jordan applied for revocation to the National Trademark Review and Adjudication Board but was rejected, he lost the case in the first and second instances and finally appealed to the Supreme People's Court. The core dispute in this case is: Does the Chinese translation of the foreign name of a foreign natural person enjoy the protection of name rights in accordance with the law? Does trademark squatting harm its commercialization interests?
Summary of Judgment Rules: The Supreme People's Court made landmark changes in its judgments in Guiding Case No. 113 and other series of judgments. The court established the following core rules: First, when a foreign natural person claims name rights protection for a specific name, the specific name must meet three conditions: it has a certain degree of popularity in my country and is known to the relevant public; the relevant public is accustomed to using the specific name to refer to the natural person; the specific name has established a "stable corresponding relationship" with the natural person (absolute "uniqueness" is not required). Second, applying the Trademark Law to protect prior name rights not only involves the protection of personal dignity, but also involves the protection of the huge economic interests contained in the names of well-known figures. Third, it clearly denies the possibility of "whitewashing" by malicious registrants and points out that trademark owners who violate the principle of good faith cannot claim that their trademarks are legal and valid on the grounds of "market order" or "commercial success."
In-depth analysis: This case is not only the focus of the intellectual property game between China and the United States, but also the first time that Chinese justice has systematically established the commercialization rights protection standards for foreign athletes’ Chinese translations of their names with the highest standards. It completely breaks the illusion that unscrupulous merchants try to legalize malicious free-riding behaviour through long-term operation, and establishes the precedent status of name commercialization rights in the field of intellectual property rights against infringing trademarks.
Case 2: The boundary of “duty of tolerance” between self-media commercial promotion and public welfare reporting
Facts of the case: According to the typical cases involving digital sports released by the Guangzhou Internet Court, two cases with similar circumstances but different scenarios were compared and adjudicated. A sports goods retail company used an athlete's training photos in its commercial promotion tweets without permission, and inserted advertising slogans such as "Look for a coach, just love the coach" to deliberately link the athlete's performance with its own services. In another case, a news media reasonably used the athlete's on-field portrait in an event information report the day after the athlete won the championship.
Summary of adjudication rules: The court made completely different judgments in the two cases. Regarding the media's event information reports, the court determined that they were "current affairs reports" that satisfied the public's right to know and were reasonably used for public interest purposes and did not constitute infringement. As for corporate promotional advertisements, the court determined that they constituted infringement and ordered compensation for economic losses.
In-depth analysis: This group of differentiated referees accurately demarcates the boundaries of portrait rights protection in the digital age. It conveys a clear judicial guidance to society: public figures do need to bear certain "duties of tolerance," but this obligation has strict limits and is limited to non-profit public welfare reports or news information. Once involved in direct or implicit brand promotion and commercial promotion, the obligation to tolerate will immediately terminate, and you must return to the authorisation logic of commercialization rights.
Case 3: Tokyo Olympic Games Event GIF Fragmented Dissemination Infringement Case
Facts of the case: During the Tokyo Olympics, an online short video platform intercepted a large number of winning moments of Olympic events without authorisation from the event organizer and copyrights holder, and produced GIF animations that were only a few seconds long. They were intensively disseminated in the "Olympic Column" of its App, attracting more than 2 million views.
Summary of referee rules: The court found that although the GIF involved in the case was extremely short in duration, it condensed all the core highlights of the event (such as the winning moment). This high-density fragmented dissemination allows network users to enjoy the viewing effect without watching the complete game, forming a "substitute viewing" effect for the complete event, thus infringing on the rights holder's information network dissemination rights and broadcast organization rights.
In-depth analysis: This case is the first typical case to clarify the standards for identifying "fragmented communication" infringement after the implementation of the newly revised "Copyright Law" in 2020. Viewed from the perspective of athletes’ commercialization rights, this judgment also has warning significance. Athletes' dynamic on-field images have extremely high commercial appeal. Self-media platforms' attempts to circumvent copyright and portrait rights review through "micro-slicing" will be severely blocked by the law when a substantial substitution effect is formed.
Case 4: Conflict between athlete emoticon creation and portrait rights
Facts of the case: A technology company got inspiration from photos of well-known athletes being interviewed, and used artistic re-creation methods such as line simplification and colour adjustment to create an emoticon package of the athlete and publicly disseminated it on the Internet to monetize traffic.
Summary of the Judgment Rules: The Guangzhou Internet Court pointed out that if an athlete’s personal image is recreated without permission, even if the creation has original expression in the art field and constitutes an independent fine art work (deductive work), it still infringes the portrait rights of the original rights holder because it inevitably reproduces the identifiable portrait of others. The court emphasized that copyright owners must not profit from illegal acts that infringe on the personality characteristics of others.
In-depth analysis: This judgment profoundly reveals the tenacity of commercialization rights in the era of digital cultural creation. It establishes the principle that "basic personality rights take precedence over copyright in derivative works." No matter what kind of artistic deconstruction or technical modification is used, as long as the final result is still directional and identifiable for a specific athlete and is used for commercial realization, the threshold of portrait rights authorisation must be crossed.
Case 5: Institutional disputes over the ownership of the image rights of national team athletes (comprehensive summary)
Controversial phenomena: There have been many sensational commercial disputes in the Chinese sports world. For example, Olympic champion Tian Liang was expelled from the national diving team for illegally receiving commercial endorsements; swimming star Sun Yang caused huge controversy when he covered the national team's official sponsor logo by wearing personally endorsed brand clothing; while Yao Ming was playing in the NBA, he also had a difficult interest game with the Chinese Basketball Association over the distribution of commercial income from his image rights.
In-depth analysis: Most of these cases end with administrative penalties or internal mediation, and rarely enter litigation procedures. However, there are profound legal conflicts hidden behind them. The focus of the conflict is: As a top athlete trained with huge financial investment from the state, should the commercialization rights of his or her image belong completely to the natural person himself, or should part (or even most) of it belong to the national team/management centre in return? From the perspective of the Civil Code, the right to commercial control of personality characteristics belongs to natural persons; however, under the administrative logic of the "nation-wide system", the national team asserted the absolute control of "collective image rights" through the "Measures for the Administration of Commercial Development of Athletes". This imbalance in the distribution of interests caused by the misalignment of laws and administrative regulations is an institutional pain point that needs to be solved urgently in the future legalization of the sports industry.
Chapter 5 International Comparative Research: Reference to Extraterritorial Systems and Rules
The protection of athletes' commercialization rights is not only a matter of domestic law, but also a consensus on the rules of global sports business operations. Examining the norms of the United States, the European Union, Japan and international sports organizations can provide a valuable coordinate system for the improvement of China's relevant systems.
United States: Strong property-oriented Right of Publicity system
The United States does not have unified legislation at the federal level. Instead, it has built a highly developed "right of publicity" system relying on statutory laws and case law of each state. The right of publicity is clearly defined as an independent intangible property right separate from spiritual personality, giving natural persons the exclusive right to control the commercial exploitation of their identity (including name, portrait, nickname, signature and even voice).
Institutional characteristics: Its biggest characteristic is complete propertyization. Publicity rights can be freely licensed, pledged, and blanket transferred as intangible assets, and are expressly stipulated to be inheritable after death for decades in many states (such as California and Indiana).
Constitutional checks and balances and transformative use test: US courts focus on balancing the conflict between commercial exclusivity and free speech. In refereeing cases involving the use of athlete data in video games (such as the NCAA and EA Sports game infringement case), the court introduced the "Transformative Use Test" (Transformative Use Test). If the game merely reproduces the athlete's real image and data characteristics without adding significant original artistic transformation elements, it will be judged as infringing the right of publicity. This has clear guiding significance for regulating the abuse of real athletes’ data in the digital gaming industry.
EU: Strict personality rights and GDPR’s regulation of data commoditization
Different from the strong property orientation of the United States, the EU legal system is deeply influenced by Kant's philosophy and has traditionally adhered to the ethical basis of personality rights. For example, German law regards personality rights as a comprehensive defensive right, and commercial utilization belongs to the property rights in general personality rights; France places more emphasis on the inalienability of spiritual legal interests.
Data as a new commoditized object: In the European Union, the introduction of the General Data Protection Regulation (GDPR) has had a profound impact on the collection of athlete data at international sports events. GDPR characterizes personal biometric data, health and physiological parameters as sensitive personal data and implements the strictest collection and processing regulations.
Reference significance: Today, when sports betting and sports analysis wearable devices are popular, the EU’s practice warns us: athletes’ competitive data is not a natural public good. Even if the data is no longer in the form of a portrait, as long as it is sufficient to identify a specific subject, its commercial use (such as licensing to a gaming company or gambling company) must follow the principles of "explicit consent", "purpose limitation" and "data minimization".
Japan: Integration of portrait rights and merchandising rights under the framework of case law
There is also no independent concept of "commercialization right" in Japan's statutory law, and its legal process and theoretical framework have direct reference value for China.
Double-layer protection structure: Japan’s Supreme Court, through a series of classic cases involving entertainment stars and athletes, recognized that the power to attract customers based on portraits and names has independent economic interests, and officially used the term “commercialization rights.” On the relief path, Japan has constructed a two-tier system: first, through the general personality rights of the Civil Code, the basic dignity of natural persons is protected; second, for malicious pursuit of popularity and misappropriation of commercial value, the confusion clauses in the Unfair Competition Prevention Act are widely applied for strong regulation.
International Olympic Committee: The Game of Rule 40 and the Reconstruction of Business Boundaries
Article 40 (Rule 40) of the International Olympic Committee (IOC) Olympic Charter is the most controversial commercial regulation in the global sports world. The clause originally stipulated that athletes participating in the Olympic Games were strictly prohibited from using their names and likenesses for the advertising of any unofficial sponsors during the event. Its original intention is to protect the rights and interests of official Olympic sponsors (to prevent ambush marketing), thereby maintaining the Olympic Solidarity Fund system.
Struggle and loosening of rules: This regulation severely suppresses the rights of athletes (especially disadvantaged athletes in non-top sports) to cash in during the peak period of traffic every four years, and has encountered fierce antitrust challenges in Europe and the United States. Under pressure, the IOC issued the "Rule 40 Business Opportunities Guidelines" for the 2024 Paris Olympics, making substantial compromises.
Refined segmentation mechanism: The current guidelines allow unofficial sponsors to publish regular commercial advertisements that do not contain any Olympic elements (such as five rings, specific slogans) during the Olympics (which must be reported to the Olympic Committee in advance); at the same time, unofficial brands are allowed to publish "thank you and congratulatory messages" on social media that only contain individual athletes but do not promote specific products (restricted use of Congratulatory advertising). This operating model of strictly stripping off "event brand IP" and "personal image IP" and introducing a registration system provides an excellent management model for resolving endorsement conflicts between national teams and individual athletes under the domestic "nation-wide system".
Chapter 6 In-depth examination from a special perspective: institutional transformation and digital alienation
While constructing legal rules, athletes’ commercialization rights must be placed in China’s specific political and economic context and the era of technological explosion for multi-dimensional examination.
Reconstruction of rights during the transition period of the “nation-wide system”
Competitive sports in China have long relied on the national system. The state has provided comprehensive and huge support for the selection, training, medical security and competition of athletes through finance at all levels. Under this institutional background, the state (usually embodied as the sports management centre or the national team of each project) requires to dominate or even monopolize the commercial development of athletes' intangible assets, which has certain historical rationality and investment return logic.
However, with the deepening of professional reform, this power attribution model established by administrative directives has caused serious friction with market rules. Can the state’s financial investment in training athletes be used as a consideration for depriving natural persons of their original personality rights? The answer given by modern civil law theory is no. Personality rights are absolutely exclusive, and administrative power should not be directly transformed into absolute ownership in private law.
Reconstruction path: The transformation from "administrative allocation and ownership" to "equal contract authorization" must be realized on the track of the rule of law. It should be clear that commercialization rights such as athletes’ names and portraits naturally and completely belong to the athletes themselves. National teams or associations can play the role of "exclusive commercial agents" based on training costs and management functions, and obtain collective development rights by signing a fair "Commercial Development Agency Authorisation Agreement" with athletes. In terms of profit distribution, a scientific tiered sharing mechanism should be established - for commercial realization of purely personal influence, athletes should receive the majority of the benefits; for endorsements that must rely on national team jerseys, national emblems and other collective logos, the organizer will draw development funds in proportion.
AI Era and New Challenges of Deepfake
Digital technology is subverting the traditional look of commoditization rights. In the era of short videos and social media, image commercialization has fully migrated from physical carriers to "bits", and AI-generated content (AIGC) has brought unprecedented forms of infringement.
Legal recognition of AI-generated athlete images: Currently, AI drawing tools can instantly generate highly realistic fictitious photos or endorsement videos of athletes based on input prompt words. The Beijing Internet Court pointed out in a copyright case involving AI-generated images that AI images generated by carefully designed prompt words by humans are original and can be protected by copyright. But this has triggered a serious conflict: If an AI user uses this technology to forge an image of an athlete endorsing a certain product, even if the image itself is protected by copyright, its essence is the illegal extraction and reorganization of the athlete's external image characteristics, which seriously violates Article 1019 of the Civil Code, which stipulates that "information technology means, forgery, etc. shall not be used to infringe the portrait rights of others."
Virtual Digital People and NFT Chaos: Currently, a large number of NFT digital collections that are created without authorisation and captured moments of athletes’ classic games are emerging on the market. The ownership and distribution of secondary transaction proceeds for this type of virtual assets generated based on real character characteristics are in a gray area. Future legal regulations must be clear: any virtual image and digital assets derived from real athletes’ biometrics and historical data must have their underlying rights traceable to the express authorisation of natural persons. The commercialization rights of Digital Twin cannot be separated from the real person.
Protection of the Rights and Interests of Disadvantaged Athletes and Young Athletes
The "Matthew Effect" in the field of sports is extremely significant. The vast majority of commercial resources are concentrated in the hands of the top 5% of star athletes, while the commercial rights of non-star athletes, athletes in unpopular sports and even retired disabled athletes who account for 95% are often completely ignored or bought out by brokerage companies at a low price.
For disadvantaged groups, pure free market competition will lead to damage to their rights and interests. Institutional design should introduce oblique protection:
Promote the collective licensing model of league unions: Following the example of foreign professional sports leagues, the players union will uniformly "package" the names and portraits of non-star players and licence them to video game or star card developers. The huge licence fees obtained will be used to ensure the basic welfare and retirement transition of all players through the internal fund mechanism.
Review of restrictive format clauses for teenagers: In the early days, it is very easy for young athletes to be locked in lifelong commercial rights by agency agencies with monopoly status using format contracts. When hearing such disputes, the court should, based on the principle of apparent unfairness, give minors the statutory right to renegotiate or terminate extremely long-term "exploitative" brokerage contracts when they reach adulthood or achieve certain achievements.
Chapter 7 Suggestions on system improvement for the protection of athletes’ commercialization rights
To build a comprehensive protection system for athletes' commercialization rights, we cannot rely solely on individual case corrections, but must form a systematic closed loop from legislative interpretation, judicial adjudication, industry self-discipline to self-protection of rights.
(1) Refinement and improvement of legislation and judicial adjudication rules
Promulgation of a special judicial interpretation on the commercial utilization of personality rights in the Civil Code. At this stage, the time to formulate a separate "Commercialization Rights Law" is not yet ripe. The Supreme People's Court should issue relevant judicial interpretations within the framework of the Civil Code to clearly define the status of "commercialization rights" as comprehensive civil rights and interests including property interests. It is clearly recognized that athletes' unique movements, classic silhouettes, and physical measurement data are all "identifiable external images" or derivative rights referred to in Article 1018, and are stipulated to be inheritable within the scope of commercial licenses to eliminate the chaos of wanton misappropriation of commercial value after death.
Unify and improve the calculation mechanism for infringement damage compensation standards. The lack of clear calculation standards in judicial practice often leads to "extremely low infringement costs and extremely high rights protection costs." It is recommended that the "actual licence fee reference benchmark" and "infringement profit presumption mechanism" be established in judicial interpretations. For cases where it is difficult to prove actual losses, the court should force the infringing company to disclose the proportion of sales growth it gained by infringing on the athlete's image, or directly refer to the athlete's real commercial endorsement licensing contract fees during the same period, and award compensation 1 to 3 times the amount. For large-scale and malicious misappropriation, the principle of punitive damages shall be resolutely applied.
To refine the supporting regulations on intangible assets in the "Sports Law", it is recommended that the State Sports General Administration and relevant departments issue the "Measures for the Protection and Development of Sports Intangible Assets" to clearly separate the scope of use of "collective portrait rights" and "individual portrait rights" at the level of administrative regulations. It is clarified that the use of collective portraits by national teams and leagues must meet the rigid conditions of "three or more people in the same frame and wearing official equipment"; at the same time, it is expressly prohibited to use administrative approval as a threat to unreasonably interfere with athletes' legitimate personal commercial endorsement activities in the offseason and in non-conflicting fields.
(2) Industry self-discipline and standardization of contract mechanisms
Promote standardized model text of "Commercial Licensing Contract for Athletes' Image Rights" In view of the current situation of irregular brokerage contracts and frequent ownership disputes, the State Sports General Administration should take the lead in formulating a model contract with guiding significance and mandate the following key terms (see Appendix 3 for details):
Precise anchoring of the licence scope: Abandon the rogue clause that "includes all current and future image rights" and require clear specific product categories, authorisation periods and geographical areas.
Reciprocal constraints on exclusivity clauses: clarify the exclusive scope of sponsored competitive products to prevent athletes from being severely fined due to ambiguous contract language causing them to mistakenly receive competing products.
Dynamic revenue distribution model: Introducing a modern business model of "fixed minimum fee + tiered sharing based on sales/traffic".
Two-way Morals Clause: It should not only restrain negative news about athletes, but also give athletes the right to unilaterally terminate the contract and demand compensation when the sponsored brand has major violations (such as financial fraud, product quality scandals).
Reasonable use of separate relief mechanisms for commercial arbitration and sports arbitration The Sports Law has established the legal status of the China Sports Arbitration Commission (CSAC). However, according to Article 3 of the Sports Arbitration Rules, arbitrable disputes stipulated in the Arbitration Law of the People's Republic of China (i.e. contract disputes between equal parties and other property rights disputes) clearly do not fall within the scope of sports arbitration. This means that pure commercial property rights disputes such as the licensing authorisation of athletes’ merchandising rights and breach of contract in commercial endorsements cannot be submitted to the Sports Arbitration Commission, but should be clearly agreed in the contract to be submitted to a general commercial arbitration institution (such as CIETAC, BAC, etc.) for resolution. The commercial arbitration mechanism can resolve commercial disputes more efficiently and confidentially than lengthy civil litigation. However, if an athlete is subject to internal disciplinary sanctions (such as suspension, disqualification) by a single sports association or national team due to violation of commercial endorsement regulations, such disputes fall within the exclusive jurisdiction of sports arbitration and should be remedied by applying for sports arbitration.
(3) Athletes’ rights protection and self-protection strategies
Use blockchain and other digital evidence storage technologies to confirm rights. In the face of massive infringements on the Internet, the brokerage team should establish a daily public opinion and logo monitoring system and use AI image comparison technology to investigate illegal commercial use. Through the trusted timestamp and blockchain copyright certification platform, individual signature designs, official promotional images, and exclusive on-field actions are pre-certified to form an untamperable evidence chain in litigation.
Establish a joint "safe haven" quick response mechanism. In response to "fragmented" abuse and the sale of false peripheral products on e-commerce platforms and short video applications, athletes should join forces with professional rights protection agencies to send batches of "notice-and-delete" requirements in compliance with the "E-Commerce Law" to the platform. Online platforms that fail to perform their review and removal obligations will be held jointly and severally liable for compensation in accordance with the law.
Chapter 8 Conclusion
The legal protection of the commercialization rights of Chinese athletes is a historic project intertwined with the basic legal principles of civil law, intellectual property competition rules and the reform of the national sports system. From the perspective of the dual attributes of personality rights and property rights, commercialization rights are not only related to natural persons’ control of their external personality characteristics and dignity, but also directly determine the value transfer and wealth distribution of the core intangible assets of the sports industry.
Through systematic normative review and empirical analysis of typical cases, it can be seen that although China has not promulgated a single "Commercialization Rights Law", relying on the forward-looking provisions of the Civil Code on the commercial licensing of name rights and portrait rights, supplemented by the "Trademark Law" and the "Anti-Unfair Competition Law" to severely crack down on free-riding behavior, and the new "Sports Law" confirming the audio-visual rights of events, a multi-dimensional three-dimensional protection network has been initially woven. From the Supreme People's Court's final word on the legal principles of the "Jordan Trademark Case" to the Guangzhou Internet Court's delineation of digital boundaries for "fragmented communication" and "emoticon derivative creation," China's judicial practice is responding to the challenges of new digital sports formats with great wisdom.
Facing the future, as the professionalization of sports deepens, we must face up to and resolve the tension between the “national system” and the awakening of individual rights. Abandoning the old administrative management mentality, introducing an equal and transparent business contract mechanism, and reasonably defining the Chuhehan boundary of the national team's collective image and personal exclusive commercial value are the only way to achieve a win-win situation for all parties. Only within the framework of the rule of law and providing athletes with the most stringent and flexible commercial protection for their personality characteristics can we truly stimulate the endogenous power of the sports industry and promote China to become a globally competitive modern sports power.
Appendix
Appendix 1: Summary table of cases related to commercialization rights of Chinese athletes
Case name and hearing court
Core focus of dispute/infringement facts
Applicable Laws and Core Referee Rules
Typical significance of protection of commercialization rights
Michael Jordan v. Jordan Sports
(Supreme People's Court)
Whether foreign athletes’ Chinese translations have name rights; whether maliciously registered trademarks damage prior rights.
Article 31 of the Trademark Law and the General Principles of Civil Law. Establish the standard of "stable corresponding relationship" and clearly protect the economic interests contained in the right of name.
The Supreme Court has systematically confirmed the commercialization rights of foreign athletes’ names, thwarting attempts to “launder” malicious registrations through long-term use.
Case of infringement of portrait rights in self-media commercial advertising
(Guangzhou Internet Court)
Corporate promotional tweets use photos of athletes on the field without authorisation and embed business slogans.
The right of portrait provisions of the Civil Code. It was determined that the use exceeded the boundaries of the tolerance obligations of public figures and was not considered fair use and constituted commercial infringement.
It clarifies the strict boundaries between public figures' portrait rights in commercial promotion and public welfare reporting, and cracks down on hidden commercial "free riding".
Fair use case for event information reporting
(Guangzhou Internet Court)
The media used unauthorised photos of the stadium in news information the day after the athletes won the championship.
Civil Code Fair Use Clause. Current affairs news reports that are deemed to satisfy the public's right to know are of a public interest nature and do not infringe.
It is clarified that the exercise of the right of commercialization cannot hinder public interests and freedom of press.
Tokyo Olympic Games GIF fragmentation infringement case
(Guangzhou Internet Court)
The platform captures the moment of winning the Olympic Games to create short-duration GIFs and spreads them centrally to gain traffic.
"Copyright Law" information network dissemination rights. It was determined that this "fragmented communication" produced a "substitute viewing" effect on the complete event.
Although it involves the rights to broadcast the event, it has established a standard in the digital era that regulates the unauthorised capture of high-profile dynamic images of athletes.
Athletes emoticon interpretation of infringement case
(Guangzhou Internet Court)
Extract athlete interview image materials and artistically modify them, and create emoticon packs for download and profit.
"Civil Code" portrait rights, "Copyright Law". It was determined that unauthorised reproduction, even if copyrighted, still infringes the basic right of portrait and no profit is allowed.
The red line for derivative cultural and creative products is drawn: artistic originality cannot cover up the illegality of commercializing without authorisation the characteristics of other people’s likenesses.
Attachment 2: Comparative table of legislation on athletes’ commercialization rights in various countries
Country/organizational system
Core rights concepts and cornerstones of protection
Legislative form and protection path characteristics
Commercial circulation and special regulatory mechanisms
USA
Right of Publicity
Rely on state statutes (such as California) and case law. Define it thoroughly as an intangible property right.
It is highly property-based and can be freely transferred and pledged, and it is clear that it can be inherited after death. Subject to the First Amendment and the Transformative Use Test.
European Union
Personality rights / personal data rights
Civil Code (based on Kantian ethics) and the regional General Data Protection Regulation (GDPR).
Emphasis on the defensive protection of spiritual personality. GDPR regards athletes' physiology, injuries, etc. as sensitive data and implements the most stringent "informed consent" collection restrictions.
Japan
Portrait rights / merchandising rights
There is no provision in statutory law, and the right to merchandize is established by the Supreme Court through a series of cases involving entertainment and sports stars.
A two-layer protection structure is adopted: the general personality rights of the civil law protect the basis of dignity, and the anti-unfair competition law strictly prohibits confusion of business reputation and free appropriation.
China
Propertyization of personality rights such as name rights, portrait rights, etc.
The "Civil Code" compiles personality rights as the main body, and the "Trademark Law" and the "Anti-Unfair Competition Law" supplement it.
There is no independent concept, and property transfer is realized through the licensing rules of the Civil Code; at the same time, it is deeply affected and restricted by the administrative regulations of the "national system".
IOC (International Olympic Committee)
Rule 40 Business Regulation
The Olympic Charter’s internal autonomy rules and guidance for specific Olympic cycles (such as Paris 2024).
Balance the Olympic collective IP and individual commercial value. Regular "non-Olympic elements" advertisements after registration and "congratulations/thank you" messages under certain restrictions are allowed.
Attachment 3: Suggestions on key terms of commercial licensing contract for athletes’ commercialization rights
Terms module classification
Core legal points and drafting suggestions
Guidelines and risk reminders for common “pitfall avoidance” in the industry
Definition of authorised object list
An exhaustive list must be used (such as: real real name, specific English translation, 2D/3D face modeling, sound material). Specify whether to include derived avatars.
It is strictly prohibited to use "and all related images that may arise in the future" and other vague expressions to prevent brokerage companies from extracting untapped new digital dividends (such as NFT) for free.
Exclusivity and time and space restrictions
Specifically defined as an "exclusive license", "exclusive license" or "general license". Strictly limit the applicable industry fields (avoiding the broad expression of "fast moving consumer goods") and geographical scope.
Competitive product restriction clauses are vaguely defined, which can easily lead to athletes being accused of breach of contract when accepting sponsorship from other non-directly competitive brands; guard against the overreach of authorisation in a transnational Internet environment.
Avoidance of isolation by collective identity
It is clarified that the authorisation is limited to the athlete’s “purely personal capacity.” Sponsors are expressly prohibited from using team uniforms with the national emblem, the Olympic rings or the official logo of the league club in promotional materials.
Potential serious violations: Infringement of collective portrait rights or intellectual property rights of event organizers, resulting in athletes facing national team bans or huge compensation claims.
Dynamic income distribution model
Establish a diversified settlement system. It is recommended to adopt the mechanism of "first fixed minimum fee + divided according to the tiered proportion of actual sales/click traffic". Includes periodic financial audit rights.
Avoid being "bought out" for several years of rights at a one-time very low price during the athlete's rising period. The lack of audit provisions can easily lead to the concealment or falsification of profit sharing data.
Two-way ethics review clause
Not only does the brand have the right to terminate the contract and claim (Morals Clause) if the athlete is involved in doping or violates public order and good customs; athletes should also have the right to unilaterally terminate the contract when the brand reveals serious product quality problems or scandals that insult China.
In the past, most of them were one-way constraints (commonly known as "overlord clauses"), which caused athletes' reputations to suffer a devastating blow due to endorsement issues with companies, but they were unable to escape.
Termination and rights clearance period
It stipulates a "liquidation period" after the expiration of the contract (usually no more than 3 months), requiring that the entire network's promotional materials must be removed and the production of all derivative products must be stopped upon expiration.
There is no compulsory removal obligation, which results in the brand still using the materials for free after the contract is terminated to "generate popularity", which affects athletes' ability to contact new commercial endorsements.
Attachment 4: Operational flow chart for responding to athlete commercialization rights infringements
Coping stage sequence
Specific implementation actions and operational points
Key participants and application tool system
Phase 1: Whole-network monitoring and clue discovery
Establish regular public opinion monitoring of commercial logos. Conduct full-band search and filtering for counterfeit peripherals on e-commerce platforms, soft articles on self-media covertly carrying goods, and even AI deep fake face-swapping videos.
Brokerage team legal department, third-party copyright big data monitoring agency (based on AI image fingerprint comparison crawler).
Phase 2: Evidence solidification and loss assessment
Once you find an infringing link, don’t immediately alert it. Electronic data storage must be carried out as soon as possible. At the same time, the screenshots retain the sales data and user comments (to prove confusion) of the infringing products to evaluate the profits from the infringement.
Territorial notary office (webpage notarization), national timing centre trusted timestamp, professional blockchain copyright storage and certification platform.
Stage Three: Business Interruption and Administrative Complaints
For minor infringements, send a compliant "Attorney's Letter" to the platform to activate the "notice-and-remove" safe harbor mechanism; for malicious trademark infringement and false propaganda, report to the State Intellectual Property Office and the Market Supervision Bureau.
Teams of practicing lawyers, legal departments/complaint handling centers of major Internet platforms, and local market supervision and law enforcement bureaus.
Stage 4: Judicial relief and property preservation
File a civil lawsuit with a people's court with jurisdiction (such as Internet Court, Intellectual Property Court). According to the Civil Code, it is required to stop the infringement, eliminate the impact, and request double compensation for property losses and mental damage. Apply for property preservation simultaneously.
Professional sports law lawyer, People's Court with experience in hearing Internet-related disputes.
Stage Five: Ruling Enforcement and Industry Blacklisting
After obtaining a winning judgment, apply to the court for enforcement. Require infringing companies to continuously publish in national media to eliminate the impact. For those who refuse to perform, promote their inclusion in the list of dishonest persons subject to enforcement.
People's Court Enforcement Bureau, Public Credit Information Sharing Platform, and Sports Industry Agents Alliance Internal Warning Database.