Casey Sandalow
HBO’s hit show, Winning Time, follows the rise of the Los Angeles Lakers dynasty of the 1980s and all the drama that surrounded it. Winning Time uses trademarked logos from the NBA, the Los Angeles Lakers, and other teams without permission.[1] This unauthorized use is especially controversial because “the NBA and the athletes that Winning Time portrays — none of whom are profiting from the series, much less have any creative input — allegedly detest its very existence.”[2]
The NBA has voiced its unhappiness about HBO’s use. Mike Bass, NBA executive and chief communications officer, expressed the league’s disapproval in a March email to The Athletic: “Clearances to use NBA trademarks were not sought or granted and the league objects to any unauthorized use of its intellectual property.”[3] The Lakers noted that they “have no comment as we are not supporting nor involved with this project.”[4] Despite these comments and attitudes, the NBA has not taken legal action against HBO.
This is a relatively straightforward case of trademark infringement: without authorization, HBO is using registered marks in commerce in a way that could plausibly create consumer confusion or harm the reputation of the NBA. It would not be totally unreasonable for an HBO subscriber to think that the NBA had authorized or actively participated in the creation of Winning Time. After all, HBO has a history of working with professional sports leagues (Hard Knocks created in tandem with NFL) and NBA stars (The Shop stars Lebron James).
So why isn’t the NBA seeking to enforce its trademark rights?
The most entertaining theory is that the NBA is afraid of embarrassment. Winning Time features several unsavory characters (like Donald Sterling) and frequently includes sex, drugs, and other scandalous content. Washington IP attorney Josh Gerben argues that it “becomes extremely messy if [the NBA] file[s] a lawsuit,” because “under oath, they would have to answer questions they don’t want to respond to.”[5] The NBA, a frequent source of high-profile scandals, may not want to dredge up controversy from a now-celebrated era. Essentially, this theory is that Winning Time only scratches the surface of the illicit activity going on behind the scenes, and the real story is much more salacious. Nonetheless, it’s hard to imagine that embarrassment alone shields HBO from liability.
Although Gerben suggests that HBO has a fair use defense because Winning Time is a “true story,” I agree with IP attorney Anthony Iliakostas that “[n]o viable trademark fair use defense would work in favor of HBO here.”[6] Iliakostas elaborates that “[n]othing supports nominative fair use because HBO isn’t using the team logos/designs for comparative advertising purposes. Also, nothing suggests this is a parody – it’s a show based on the Lakers dynasty.”[7] Despite the stated good intentions of showrunner Adam McKay, it is not likely that HBO’s use is fair.
The most plausible theory is somewhat anticlimactic: corporate synergy. HBO’s parent company, WarnerMedia, also owns TNT and TBS, which collectively pay the NBA more than one billion dollars a year for live broadcast rights.[8] It seems as though the NBA may be making a business decision to avoid upending its lucrative business relationships in search of comparatively insignificant monetary damages. This echoes the NFL’s decision not to do anything in 2015 about unauthorized trademark use in the series Ballers.[9] The NFL had a more direct business relationship with HBO via Hard Knocks, but the basic strategy remains of declining to enforce trademark rights that might threaten important corporate partnerships.
While it may be exciting to think that HBO is somehow immune from trademark infringement or has discovered some new loophole, neither of those things appear to be true. The most plausible explanation for the NBA’s choice not to enforce its trademark rights is simple: it’s not worth the financial risk of souring relationships with WarnerMedia/TBS/TNT. It will be interesting to see if the NBA changes its tune in the future, as HBO recently renewed Winning Time for a second season.[10]
[1] Samantha Bergeson, Adam McKay Isn’t Waiting for NBA to Approve ‘Winning Time’: ‘We’re Coming at This with Good Intentions’, IndieWire (Feb. 23, 2022, 6:00 PM), https://www.indiewire.com/2022/02/winning-time-adam-mckay-nba-approval-1234701486/
[2] Lacey Rose, How HBO’s Lakers Series Ticked Off the NBA, Ended a Friendship and Became the Most Anticipated Sports Show in Decades, The Hollywood Reporter (Feb. 22, 2022), https://www.hollywoodreporter.com/tv/tv-features/winning-time-adam-mckay-john-c-reilly-hbo-laker-series-1235097468/
[3] Bill Shea, NBA ‘objects’ to ‘Winning Time’ trademark use, but legal options would be messy, The Athletic (Mar. 9, 2022), https://theathletic.com/3171879/2022/03/09/nba-objects-to-winning-time-trademark-use-but-legal-options-would-be-messy/
[4] Id.
[5] Id.
[6] Id.
[7] Id.
[8] Id.
[9] Mike Florio, Now that Ballers has debuted, will NFL or Dolphins have anything to say?, ProFootballTalk (June 21, 205, 11:46 PM), https://profootballtalk.nbcsports.com/2015/06/21/now-that-ballers-has-debuted-will-nfl-or-dolphins-have-anything-to-say/
[10] Rick Porter, Lakers Series ‘Winning Time’ Renewed for Second Season at HBO, The Hollywood Reporter (Apr. 7, 2022, 10:00 AM), https://www.hollywoodreporter.com/tv/tv-news/hbo-renews-la-lakers-series-winning-time-season-2-1235126769/