Sports, media and entertainment law
Download PDF version 
Introduction
The legal area of sports, media and entertainment covers a wide range of issues including, for example, legislation regarding gaming, trademarks, marketing and the freedom of expression of the mass media. The area covers all kinds of contracts and co-operations regarding publishing agreements, sheet contracts, copying, publications, digital readout and other commercial use of rights.
In Denmark, most situations relevant to the parties are not regulated through any specific legislation, but remain to be solved on the basis of the general principles of Danish contract law. Amongst other things, these include player contracts, transfer agreements, sponsor and advertising agreements, and stadium rules and regulations.
However, it must be noted that provisions and regulation from the relevant national and international federations may impose terms on the contracts mentioned above which must be followed.
Specific statutes governing the sports, media and entertainment area are:
- The Danish Act on Copyrights
- The Danish Trademark Act
- The Danish Act on Gaming (not in force yet)
- The Danish Data Protection Act
- The Danish Act on Marketing
Generally, commercial sports is not governed by legislation. This is due to the main sources of regulation of sports in Denmark originating from statute and rules from national and international federations, supplemented with general Danish legislation which applies to commercial sport matters.
However, with the coming into force of the Lisbon Treaty in December 2009, the European Commission has been given a formal legislative power in the field of sports. Thus, more specific regulation of sports and sporting activities must be expected in the EU and in Denmark in the years to come.
Although the new article 165 of the Lisbon Treaty gives the European Union a formal competence in the field of sports and provides a much needed legal clarity from the highest level within the EU, sports is still very much an area of law consisting of fragments from several other areas of law according to the specific matter in question. Thus, acting in the fields of commercial sports requires knowledge on several different areas of law.
Intellectual Property rights
Ownership and protection of intellectual property rights are often of great importance to companies and persons involved in professional sports as these rights form the legal basis of the commercial value of professional sports. However, the area is relatively complex and consists of different laws as well as comprehensive case law.
The Danish Trademark Act is of importance as it protects registered or utilised/incorporated trademarks against infringement by third parties of the rights of the holder of the trademark. A trademark may be a company name, the name of a sports event, figure marks, slogans or words or word-combinations associated with sports events/activities. As a main rule, the registration or utilisation of the trademark protects the owner against the commercial use of marks identical to or similar to the trademark for competing goods or services (similarity of goods). In relation to well-known or famous trademarks, the protection may be extended to dissimilar goods or services against other marks which take advantage of or use the trademark, which is detrimental to the repute or distinctiveness of (often a kind of parasitic behavior).
The Danish Copyright Act may also govern this area, namely with respect to sports logos and sports slogans, but also to the sports activity itself which may be subject to protection.
Substantial amounts are involved when TV rights are subject to contracts. If a legal basis of protection exists, the rights holders may obtain the full commercial value of the broadcasting of their products.
It is difficult to identify any compelling arguments why sports telecast should not be protected by Danish copyright law, given that significant legislative measures have recently been introduced with the implementation of the Audiovisual Media Services Directive (2007/65/EF), a replacement of the former Television Without Frontiers’ Directive from 1997.
According to the Audiovisual Media Services Directive, TV channels which have not bought any TV rights may broadcast short news excerpts in connection with other news. Thus, the Directive provides for the use of short extracts of sports event that are otherwise subject to exclusive rights. The purpose is to make sure that the public at least has the possibility to view a short summary of sports events.
The laws mentioned are supplemented by case law which generally protects image rights against parasitic behaviour.
Gaming law
The Danish Act on Gaming provides that all operators will need a gaming license in order to be able to operate a wide range of games and gambling in Denmark.
In order to obtain a license, the applicant’s corporate structure and financial position must be assessed. If a license is granted, the gambling provider must pay an annual fee of DKK 1,050,000 – DKK 1,200,000 in addition to an application fee.
Under the new act, a gambling provider is subject to a 20 % tax rate on the gross income. In other words, the gambling provider must pay 20% tax of the amount which the stakes of the games exceed the winnings paid to the winners.
The Danish Act on Gaming was to have entered into force 1 January 2011. However, Danish companies which may potentially be affected by the act have complained to the European Commission due to alleged inconsistency with EU law and differential treatment between traditional operators and online-operators with regard to the tax rates. The European Commission is presently assessing the legality of the Danish Act. Hence, the effective date of the new Act has been postponed indefinitely.
If the Act enters into force, the market of gambling in Denmark will then be subject to competition between companies obtaining a license.
Data Protection
The Danish Data Protection Act has implemented the EU-directive 95/46/EC on the protection of individuals with regard to the collection and processing of personal data.
Under the Act, collection of data may only take place for specified, explicit and legitimate purposes. Any processing subsequent to the collection must be compatible with such purposes.
The Act contains some quite intervening rules on the collection, processing and, in particular, disclosure of data for marketing purposes.
The Act is supplemented by legislation regarding the collection and processing of specific types of data, e.g. the Danish Act on Information Databases Operated by the Mass Media and the Danish Financial Business Act.
The above does not constitute legal counselling and Moalem Weitemeyer Bendtsen does not warrant the accuracy of the information. With the above text, Moalem Weitemeyer Bendtsen has not assumed responsibility of any kind as a consequence of a reader’s use of the above.