The issues involving Steve Lipscomb's letter to players and the pros' responses - one of the beneficiaries of this controversy is pocketfives.com, which now has Duke posting on the site - are complex and scattered.
There is an easy solution, but it will never happen.
The players could get what they want, but they never will.
Everyone is promising to act reasonably, but it will be too late to enforce that promise if anyone acts unreasonably.
1. Easy solution: the release should be specific to the production of the TV show and promoting the show. Why should the pros' likenesses be used to promote other products the WPT is selling? The problem, I think, is that the WPT is seeing all the dough the online sites are making and are worried they are late to the game with WPTonline.com (plus they can't currently operate it in the U.S., something I predict they will arrange in the 2006). WPT's management may be thinking they are in a fight to the finish (languishing stock, no profits, fights with The Travel Channel and its casino/event partners) and can't afford to give up anything. If they see an online poker site go public and be worth 10 or 50 times what they are worth, maybe they think they can't afford to be reasonable.
2. The players must lose: without Annie Duke, Phil Hellmuth, Howard Lederer, Chris Ferguson, or Andy Bloch, the last WPT event of 2005 went off just fine. Get Doyle Brunson at your final table and all is well with the world. The WPT doesn't need every top player at its tournaments - just enough to get a couple to the final table. Only if the few pros to whom this mattered stood their ground is there any realistic chance the WPT would cave. That will never happen. Listen to the fights the pros get into just deciding what games to play at the $400-$800 mixed table at the Bellagio and you'll understand why they can never take a unified stand.
3. Be reasonable - or don't. Steve Lipscomb seems like an honorable guy. Some players may believe otherwise, but for the purposes of this argument, give him the benefit of the doubt. Problem 1: reasonable people can get into huge disagreements. If WPT needs to use player images to save its corporate life, it's not going to fall on its sword if Howard Lederer says he doesn't want that to happen. And if WPTonline.com started promoting its site with images from Howard and that costs him his ability to promote FullTiltPoker.com, which he has been endorsing since it started, what kind of compensation could it give him to make up for that? From Annie Duke's posts, it seems like this is more than a hypothetical problem (i.e., WPT's videogame with footage of her, used without her consent [other than through the release] or compensation). Problem 2: Steve may not be around the WPT for too long. Someone told me that Lakes Entertainment, which owns 60%+ of WPTE stock, recently used that stock as security for a loan. If it defaults and the group that made the loan takes control, Lipscomb might not be the guy making those decisions. It might be someone who looks at the inventory and decides the only assets worth keeping are the rights to use players' likenesses on a variety of products.
Realistically, I don't think most people reading about this will change their stance about their own involvement in WPT events. For most of us, those rights are simply too speculative to cling to, at the expense of "our shot." It's clear that Duke, in her posts, is not advocating that anyone follow her lead. Just understand why I'm doing what I'm doing, she seems to be saying.
That's reasonable. The identification of poker with quality people like Howard Lederer, Annie Duke, and Chris Ferguson is good for the activity. These people are great ambassadors for the game ... AND THEY CONTINUE TO BE. Even if their situation is not the same as ours, it seems like they are acting in an above-board manner to protect their own interests and trying to find common ground with the WPT.
It's bad for a sporting activity when the public looks at the participants as greedy, spoiled, overpaid, or unmotivated. I don't think it was particularly smart of Steve Lipscomb to imply any of this - or, as he did, simply suggest there was some undisclosed motive behind the players who are criticizing the WPT, though I haven't seen much criticism. If he wants us to think some players are bad apples, he's hurting his own product.
Plus, it's pretty clear that he's wrong on that. I haven't seen or heard any players shooting off their mouths. To the contrary, I think the players have tried to be very low-profile in getting this worked out. Annie Duke got a copy of the release for the Bellagio event and had her lawyer contact the WPT in advance. Lipscomb, not Duke, sent out the "Open Letter to the Poker Community". Same with Chris Ferguson. He showed up prepared to release the rights to his image for the broadcast and to promote the show. He consulted a company with a contract concerning his image in promoting it and wanted to avoid a conflict with rights he sold to someone else. These players didn't boycott or grandstand.
It looks to me like they wanted to play.
And that's why the stakes seem so high: no one wants to kill the golden goose. The pros probably should be limiting their participation on all these tournament circuits, but they're not. They are trying to control their images, which have become brands. It looks like they still want to play, and get people to watch the WPT (and the WSOP, and Fox Superstars, and etc. etc. etc.). Especially with the players almost always putting up more than 100% of what they are playing for, it seems like the pros are honest workers who give the public (and its proxy, the broadcasters) all they can - the pros all share a will to win and it's been my experience that they work extra-hard to make these broadcasts as good as possible, taping every interview, plus cooperating with every form of media and all the fans.
The biggest casualty of this fight would be if fans of TV/tournament poker became disillusioned with the activity. The pros have gotten a lot from the poker boom but it looks to me like they have given a lot, too. If the public turns up its nose from this, I can't see it being the players' fault.
I think you nailed it on the head. As someone who knows a little bit about that goings and comings of online poker I think WPTonline will be sold to a company outside of US jurisdiction allowing the WPT to compete against its players. Most of the residual income that players recieve come from their involvement with online poker sites. The WPT has been filming spots for WPTonline with their new Shauna Hiatt, so free advertising when the online sites have to pay them. Issues regarding branding aren't insignificant but if the WPT were to be able to take wagers in the US they would likely leapfrog sites like UB or Full Tilt, so that is what I see is the real issue and that is an issue I could get behind. Branding is not an issue to many of us but knowing the devious origins of a power play into the online poker world would raise big red flags to me.
When Daniel comes out and says "everything is great, we can all play WPT again" I don't think he was speaking for everyone. He seems to be relying on Steve's word and lets face it there are some people in bed with the WPT and there are some people in bed with ESPN and Fox. If you are listening to opinions you need to first consider where that opinion might be coming from.
I still can't see why a network like ESPN or Fox couldn't add money to each event they have or have sites like FTP, UB and Party Poker start a tour with added money. If you add 500k to an event that would get people's attention in a big way and it is a drop in the bucket compared to whats at stake.
It is my opinion that the WPT will be relegated to second tier status without some dramatic changes that don't seem likely. But I also think that the big name players (who do have influence on these networks) need to start letting newer participants in or at least start excluding people based on money. I understand the new GSN show did allow anyone with $100k to play, that is a huge start. If Fox has a SuperStars event why can't a guy like me buy in for ridiculous amount? The "inner circle" needs to realize that without the hope of getting in the clique the average player won't have their backs.
As per Lakes Entertainment 10Q recently filed with the SEC:
Lakes Entertainment did use its stock in WPTE as a security of a $20 million loan on December 16, 2005. The group that made the loan...................The Lyle Berman Family Partnership.
Beans, a couple of points -
1. The "average player" is not rich but unrecognized. He/she is poor but (somewhat) talented.
The very thing that makes Poker attractive to a mass audience is that anyone can play... and win. Raising entry fees, and excluding people strictly on the basis of monetary means just makes poker an insiders game. It most definitely kills the goose.
2. Signing unrestricted releases is nothing less than betting against yourself.
3. So far as I can see, nobody is being "excluded". Anyone is welcome to sit at the cool kids' table. Play your best poker, and you too can win. Win and you get presented with the same opportunities.
At the WPF in November at Foxwoods I signed one of the WPT releases. I did notice that the release seemed to allow them to do pretty much anything with my image, but the choices were to not play or to sign the release.
Do they now own the rights to my image to the point where I could not ever sign an endorsement deal with anyone else?
And will that stand up in court?
Keep in mind that what you're asking for is legal advice at the heart of this matter, so (a) even though I'm a lawyer (and I was pretty good when I made my living at it), my answer is more a back-of-the-envelope analysis, and (b) there is no definitive answer until someone risks their career as a "brand" to test it.
N.B. To say the release was broad is an understatement. It includes the phrase "throughout the Universe" in it.
What seems to me to be the case is that (a) the releases are event-specific (and they have changed over time), (b) the footage lasts forever, (c) endorsers are relatively uninterested in hypotheticals until they already have you under contract.
1. You play Foxwoods having signed the release and bust out 400th. Two years from now, by some legerdamain, you win 4 WPT events, the main event of WSOP, and Fox Superstars. Also, you managed to get by without signing the WPT release. If the WPT has any footage of you from Foxwoods '05, it can use THAT FOOTAGE - you released them to do that throughout the Universe - in whatever promotional capacity they want. They can't use footage from your 4 WPT wins in '07 because your '05 release doesn't cover that. But, of course, there isn't any circumstance in which you'd have gotten to compete in those events without signing.
2. Same situation as 1. except (a) you never play in another WPT event, and (b) before busting out, you win one big pot, so big that as you rake it in, one of the WPT tourney chips hits you in the forehead and sticks for a moment. A roving camera catches this moment as you say, "Winning this pot is better than winning the main event of the World Series of Poker." After you win the '07 main event at the WSOP, you may wish you hadn't said that because your release allowed them to use it.
3. Same hypo as 2. except without the goofy pre-bust-out moment. Instead, you finish 3rd but never play another WPT event. After winning the main event and Fox Superstars, Pokerstars approaches you to be a spokesman/compensated pro. They would feel no reservation based on your signing the WPT release back in '05, but if the WPT started using your image to endorse its competing business, WPTonline, Pokerstars might tell you to get them to stop or you're through with them, or that your Pokerstar deal is structured so they can terminate it or give you less if you show up on a competing site.
I think the real issues, however, are after you land other deals and have to play defense. Your endorsers may be worried about you potentially giving away rights they bought.
Another hypothetical -
Say WPTonline decides to include a "Tips From the Pros" section. You click on a link and see: "Chris Ferguson talks about x", or "Annie Duke speaks about y", or "Big Name Pro Z talks about Implied Odds", and get a filmclip from an interview done at some WPT event where the named pro gives his or her view on some aspect of the game. Maybe it's merely a comment made at the table during play.
Now, there's no explicit endorsement of WPTonline, but there sure is an implicit value in having a site where people can go and play and get advice from the pros in their own words.
There's also a diminished value in having one of those pros explicitly endorsing some other site. That site cannot offer any equally compelling service unless they buy the rights to that footage from the WPT. Confusion abounds. What site is the pro really endorsing? The one where he/she has a formal contract, or the one where he/she gives televised advice due strictly to the technicalities of an overly broad release?
The WPT would not have expanded the language of their release form unless they foresaw ways in which such an expanded release would benefit them. They made it as broad as legally possible because they also knew that there were potential benefits to them from opportunities nobody could foresee. The wording also, apparently, insures that the onus falls to the player to sort out (and pay for) the legalities.
Nobody will know all the ramifications, and who really benefits and who really pays until something winds up in court. That's a needlessly risky and expensive way to conduct the business of playing poker.
This is exactly what they did in the WPT video game...they used footage of me and other pros giving tips. No they did not create an avatar of me but there is obviously added value to the game to have tips from pros in it. This is why Crave is unhappy (me too) for exactly the reasons you speculate about Wpt using similar footage for WPTOnline
So WPT wants to force the Pro Poker tours down the same road as Boxing where the organisations basicly owns the players if they want to compete in their events? As opposed to most other sports where the good players can choose what products they want to promote?
So lets say that you win a Satellite to a WPT event.
You are then forced to sign this WPT contract before you can play.
Somehow you then manage to win that event.
WPT then signs a sponsorship deal with lets say a tobacco company.
So despite that a loved one died of lungcancer , your can then find your image on a box of cigarettes??? And there is nothing you could do about it?
Or you can find your image in a WPT Videogame paired with subpar AI, because you happened to get busted by on the first day by someones AA?
At the site im playing its stated in the Terms & Conditions section:
"The WPT Championship is sanctioned by the World Poker Tour. You acknowledge and agree that the World Poker Tour requires all players in World Poker Tour events to sign a waiver prior to the beginning of the WPT Championship that includes permission to film and broadcast your participation in the WPT Championship, as well as a "no deal" clause."
Now if that waiver would go way beyond permission to film and broadcast the event I think its doubtful that its safe to even bother to try and qualify for it.
I'm guessing that ultimately your best recourse is going to be buying back all of the footage WPT has on file of you. A ruthless corporate lawyer could do a lot to twist just how far Copyright extends, and whether you have the right to repeat your own words in a competing setting.
It's the only way I can see for you to protect your present and future earning potential.
That's a sad, expensive, messy and protracted state of affairs. And, it's one that could happen to anybody who has success at the tournament tables.
IOW, boys and girls... it's not just Annie at risk here... or Howard or Chris, D'ags, Doyle, or any of the 42,000 Phils... it's you and me and anybody who one day sits down at a WPT table.
And, since those rights extend "throughout the Universe", your image could be used to promote any number of worthwhile things as well. You might be plastered on a box of rice in India.
Conversely an Indan shaman/guru might be able to purchase rights to use your likeness (without your knowledge) to promote his "Beetle-dung-cures-all" nostrum.
Poker is going to be HUGE in the Orient. The Chinese in particular have a looooonnnnnnggg history of betting on anything. The likeness of any recognizable poker star is likely to be valuable in the Chinese market.
etc. etc. etc.
This is the first paragraph of the WPT PCA release. It is a very one sided document.
There is some simularites to this and the American Idol program. Whereas, the contract allows yout to compete, you could become a star, but if you do, we want a piece of the pie (including your name). Some contestants have battled the contract situation and won.
Using a persons likeness, to promote the WPT Television Program is one thing, But using it to licence other products, and build an overall brand is another.
I would like to thank everyones energy on this topic. After reading the various threads on the subject, then reading the actual document, I doubt you could find a lawyer in America that would recommend a person to sign this.
The first paragraph reads:
1) Grant of Rights. Player acknowledges that WPT Enterprises, Inc. and its successors, assigns and licensees (collectively, "WPT") will be
recording, filming, photographing and exploiting films and/or television specials or other audio visual works of and/or about the Tour Event (jointly and
severally the "Programs"). Player consents to such filming and exploitation of the Programs, and hereby irrevocably grants to WPT the right to film,
record, edit, reproduce and otherwise use Player's name, photograph, likeness, signature, biographical information, appearance, actions (including, without
limitation, revealing Player's hole cards), conversations (including, without limitation, "behind the scenes" footage and filmed interviews with Player)
and/or voice (the "Recordings") in, and in connection with, the Programs and/or the "World Poker Tour" and in connection with the distribution,
advertising, publicizing, exhibition, and exploitation thereof and of other audio-visual works (including, without limitation, "behind the scenes" productions
and public service announcements) and any and all derivative, allied, subsidiary and/or ancillary uses related thereto (including, without limitation,
merchandising, commercial tie-ins, publications, home entertainment, video games, commodities, etc.), in whole or in part, by any and all means, media,
devices, processes and technology now or hereafter known or devised in perpetuity throughout the universe.
I think there's a way out of this for the WPT and it costs them something but not a ridiculous amount. The WPT definitely has the ability to "make" stars. Players like Gus Hanson, Evelyn Ng, Antonio Esfandiari, and Phil Laak are much better known - even relative to other players who have gotten a lot of WPT exosure - than they were before their TV time on the WPT. What they should do - and should HAVE done - was make deals with these players (lucrative, after-the-fact deals, not blanket releases that gives the WPT all the negotiating power) to make them the main men and women in ads, in videogames, on their web site, etc.
I know they are already doing some of this, or it seems like they are. For instance, I don't know if they have a deal with Esfandiari or what it consists of, but his WPT exposure definitely raised his profile. It SEEMS like he's tight with the WPT from his appearance on its videogame and in ads. But at the same time, his web-site affiliation with with UB. Maybe it's too late for WPTonline to get him but in an ideal world, WPT would feature people like him, make them more famous, then offer them competitive-or-better deals to capitalize on that fame.
The poker business is playing for HUGE stakes. If and when more of these online sites go public like Party Gaming did, it's going to be for billions. I'd be moaning and groaning if I was Lipscomb, too, if I was a pioneer in the this business but didn't get my bet down on the best proposition in the game. But it's better for everyone if they take the players they think they "made" (and this has nothing to do with assessments of ability - Antonio won a WSOP event; Gus was already one of the highest-stakes cash game players) and become partners with them. This shouldn't require an overbroad release or some kind of sneak attack. I don't know what kind of web site deals guys like Gus Hanson and Phil Laak have but with their WPT "brand awareness", the WPT SHOULD value them more highly than some other site.
If they go out and REALLY sign some top pros/personality, it's more effective for their promotions, as well. For example, let's say the WPT decided it absolutely had to appropriate Chris Ferguson's image to move product and it had a right to do so. It's limited to the footage it has. On the other hand, if you've seen the Full Tilt ad where he bluffs the guy with seven-deuce, you can see how much promotional value there is in not just having a piece of video, but in building a brand together.
I hope for everyone's sake the WPT goes in that direction, but it's not looking like it so far.
The first thing they taught me in law school was that all contracts have to have "consideration" - something of value each side exchanges. The second thing they taught me was that the concept is, as a practical matter, irrelevant. ANYTHING can be consideration.
WPT is on solid ground if they say allowing you to play in the event is the value it is giving. In kind of a sick way, it's VERY valuable. If you pay the $10,000 to play and don't sign the release, they'll bounce you from the tournament and not give you your money back. (Andy Bloch had to make that choice at WPT Brunson in October.) So $10,000 + no release does NOT = right to play. $10,000 + release = right to play. Therefore, the right to play is the thing of value WPT gives for the release.
They get - "(including, without limitation, "behind the scenes" productions and public service announcements) and any and all derivative, allied, subsidiary and/or ancillary uses related thereto (including, without limitation, merchandising, commercial tie-ins, publications, home entertainment, video games, commodities, etc.), in whole or in part, by any and all means, media, devices, processes and technology now or hereafter known or devised in perpetuity throughout the universe."
- all for the priviledge of you paying them top dollar to potentially win some money in one of their tournaments.
Current WPT Release = BAD = EVIL = foolish for all involved. Including the WPT itself.
Michael, no offense but that is quite the worst idea yet. In effect that would mean that is you are already a famous Pro you could negotiate an exemption from the release of rights to your name and image/and or be reimbused by WPT for the use of it.
The rest of the poker community would be even worse off though. If you would win a Satellite, you would have no choise but to sign that crappy contract or kiss you newly won 10k buyin goodbye.
It would also put WPT in the position to pick who would safely be able to enter a WPT event without signing away their name and image. They would sign names that would make "good television" and high ratings and pass on well behaved , polite players with table manners simply because they wouldnt get ugly and dirty enough to create a "good show" for WPT to pimp away to the networks. You would find Matusows and Tony G's at every WPT event but not Eric Lindgren or Howard Leaderer. Jennifer Tilly would get the red carpet but not Clonie Gowen?
Pokerskills would be less important as long as you famous or infamous and preferable have a colorful past like a little jailtime for peddling drugs or shooting someone. Screw the sporting aspect of poker....lets make a poker reality show! A freak show with "Mike the Mouth" in one corner and Hellmuth in the other. Tune in next week to see Tony G rip into TJ Cloutier!
I wouldnt even be surpised if something like this already happend. Daniel Negreanu changed his mind very fast after talking to WPT. What did they promise him? That his name and brand would be safe as long as FCP signs up as an offical WPT Member? Was that all it took for DN to state on his blog that all is well in the world and that WPT are good honorable guys...let the satellites begin...come qualify for the January WPT events...take you shot at fame and fortune and it starts right here at FCP!
Lets hope for eveyones sake that WPT doesnt go in that direction, but it does look that way so far.
Perhaps I didn't explain it well; some of what you are concerned about has been happening for a few years. First, I agree that everyone should sign the same agreement. As a practical matter, if you or I satellited (yes, I'm using "satellite" as a verb) into an event, we don't have to worry much about what we're signing away. Pros with pre-existing deals or the reasonable likelihood of obtaining those deals are in a different boat. But it ought to be the same release for everybody. (Keep in mind, however, that this may be the WPT's reason for not granting exceptions for pros who had pre-existing sponsors and deal with which the release interferes: "We can't give Chris Ferguson rights that we won't give Joe Satellite Winner." I'm not sure if "equal" and "fair" are the same thing here. Chris already appears in a video game. He already promotes an online site. We don't do either and one tournament, even if we won it, might not change that. I could live with having to sign for a couple sentences they let him cross out, if the alternative is losing the pros from big chunks of the tournament circuit.)
But the WPT has already taken the first step of "making" stars. As I said in my initial post, this is not a comment on the poker skill of the players involved, just the WPT's role in spotting them and presenting them on TV. Every time WPT does a Ladies Night or Bad Boys, they are choosing certain pros to promote, sometimes people we've never heard of. Antonio Esfandiari has proven a successful tournament player, but the WPT has gone out of its way to help him become "a brand." Same with Gus Hansen and Phil Laak. Despite their later success Clonie Gowen and Evelyn Ng weren't particularly well-known before the WPT focused on them, either.
Don't fret about this. First, it's a fact of life. The media is looking for a story. Fundamentally, every sporting event appeals to a larger audience when it goes beyond the numbers and the players and TELLS A STORY. Maybe the story is of a magician or a madman, a silent cowboy who disappeared for a decade or a unibomber, or maybe it's a gambling mom or a benefactor of children's charities. But poker is better when it tells a story.
Second, in poker, you still have to win; there's only so much they can do to promote certain players. Third, it's not all about wrestling-type characters. They can and have promoted Barry Greenstein and Hoyt Corkins and Howard Lederer, none of whom jumps around or does magic tricks.
And it's not a matter of who gets to enter (except for a few invitational events which, ironically, will become the more frequent places for watching the big boys go toe-to-toe if the WPT doesn't get its act together). Poker has always been the most democratic of sporting activities. If you've got the money, you've got a right to be there. And everybody's bread is buttered by the burgeoning satellite business, both online and at the sites. None of that changes if the WPT wises up and starts locking up its emerging stars by some means other than the current releases.
WPT has already gone halfway there by making some of these players especially marketable - I sometimes wonder whether the nicknames they give for these guys at the final tables are made up five minutes before, like Randy "Dreamcrusher" Jensen. I'm just suggesting they go the second step and offer them the real dough (like the online sites are offering the Phil Hellmuths and Howard Lederers and the video game companies are offering the Chris Fergusons) to get them completely on board.
It would be a lot cleaner than their current plan, which is to never quite lock these guys up, but leave hanging this spectre that they can just take their images and do what they want.