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December 24, 2015

Will Smith's 'Concussion' clear to use NFL logos without consent

Amid week of alarming reports, NFL braces for debut of controversial film

With Will Smith's latest movie 'Concussion' hitting theaters Friday, the National Football League is bracing for the critical fallout of a film that depicts Nigerian doctor Bennet Omalu's efforts to expose the dangers of chronic traumatic encephalopathy (CTE), a brain disease linked to repeated head injuries.

The week leading up to the film's release hasn't been particularly pleasant for the NFL. The league suspended Giants' wide receiver Odell Beckham Jr. for one game after his direct helmet-to-helmet charge at the Panthers' Josh Norman last Sunday. It was an intentional hit by a superstar that epitomized the risks players face even when they carry themselves as sportsmen.

On Tuesday, ESPN published an article claiming the NFL backed out of funding a pioneering Boston University study that will attempt to diagnose CTE in living patients for the first time. Despite providing a $30 million research grant to the National Institutes of Health (NIH) in 2012, the league's name did not appear on a press release announcing the 7-year, $16 million initiative to study the relationship between football and brain disease.

The NFL denied ESPN's report, claiming "the NIH makes all funding decisions" and reiterating the league's continued support of other concussion research studies. Sources told ESPN, however, that the league was wary of the NIH study being led by Boston University's Dr. Robert Stern, who has been a vocal critic of the NFL's concussion lawsuit settlement with former players.

Even with the NFL's impregnable popularity, the groundswell of recent attention surrounding concussions begs the question of why the league would be willing to allow its logos to be used, without consent, in a film that portrays its actions in a negative light.

According to entertainment lawyer Michael C. Donaldson, who spoke with Business Insider, Sony Pictures is at liberty to use the NFL logo (and the logos of its teams) as long as the film doesn't misrepresent its use in real life. Donaldson used Coca Cola as a trademark example for cases in which permission is in question:

"It's all right to say, 'This Coca-Cola tastes awful.' You can say, 'I hate Coca-Cola.' What you can't say is something that misrepresents it, such as you drink a Coke and you drop dead and someone says, 'That happens all the time.'"

Donaldson also referenced similar issues that cropped up in HBO's 'Ballers' series, which used NFL logos despite portraying certain aspects of the league – from concussions to off-the-field issues – in an uncomplimentary light. Because those issues have occurred in real life with some regularity (Ray Rice, Ray Lewis, Richie Incognito, Greg Hardy), HBO was free to use the logos without misrepresenting reality.

Just what impact 'Concussion' will have, both cinematically and as a commentary on the NFL, remains to be seen. At least leading up to the movie, the NFL has attempted to treat it as a lesson on the past and a potential milestone for future improvements to player safety.

“We are encouraging players to see it, as a teaching tool for them about the not-so-ancient history of how the league mismanaged a serious health and safety issue, and why it’s crucial for the union to be aggressive on these issues,” George Atallah, the NFLPA’s executive director of external affairs, told Sports Illustrated. “I think that’s where the film has a really strong message. Not that football is dangerous, because we all know playing football comes with risks, but the only way football is going to end is if we continue to deny some of the dangers and don’t try to fix them.”