Blog Post On IP Empowerment for All

IP Empowerment for All

– Howard University School of Law’s Intellectual Property Student Association


“In a system where billions of dollars are generated in part due to the athletic success of student-athletes, the restrictions on non-game related NIL deals do not prevent exploitation— they are exploitative.” –  Professor Gabe Feldman, Tulane Law School; Director, Tulane Sports Law Program; Associate Provost for NCAA Compliance


While O’Bannon’s decision and the subsequent law changes in California and Florida is great progress around name, image, and likeness (“NIL”) as it pertains to the NCAA and student athletes, it has also created some other issues.

Uniformity is one of those issues. With the absence of  federal legislation covering NIL standards for college athletes, California’s Fair Pay to Play Act has in essence created a “venue shopping” system where student athletes can choose a school to attend simply because it’s located in a state with more favorable NIL laws. In addition, large amounts of conflicting legislation can lead to mass confusion.

The other issue is that, in other states, students are dealing with the traditional harms of student athletes in the market for non-game NIL payments:

  • Student athletes—just as other students—have property rights in their name, image and likeness. Many student athletes have created tremendous value in their NILs and, absent NCAA restrictions, would receive significant compensation for them in an open market. These men and women—often from socio-economically disadvantaged families—are deprived of the economic benefit the market would pay for their property.
  • Some student athletes will actually have the most value to their NIL while they are in school. For example, some athletes are injured prior to professional drafts. Therefore, the NCAA’s policy prevents those athletes from properly capitalizing off of their image when it is most beneficial for them to do so.
  • But most importantly, the stripping of an innate, legal right in consideration for the ability to play a sport (without any education about its existence) leaves the athletes less inclined to know how to properly use and commercialize their IP in the future.


One of the most common complaints against “Fair Pay to Play” is the argument that athletes do not deserve to be paid for playing a sport. This usually comes from people with little understanding of NIL or the NCAA’s policy, and rests solely on the literal meaning of the phrase.

But it’s important not to confuse third-party NIL compensation with other types of compensation. Most importantly, the NCAA is not contemplating changes that would allow colleges to pay college athletes. The Board of Governors remains fiercely opposed to “pay for play” and other forms of university-to-athlete compensation outside of the grant-in-aid (tuition, fees, room and board, required course-related books etc.). Third-party compensation for NIL is also not compensation for the underlying labor of playing a sport. No college will be allowed to pay their athletes for their NIL or their labor. The legislation would merely allow for student athletes to have the same NIL rights as every other student-creator.


Howard University School of Law’s Intellectual Property Student Association (“IPSA”) has held a long-standing devotion to the application of social justice in the area of IP. It naturally follows that we would like to support a federal bill that would give college athletes the opportunity to profit off of their image and likeness that they have worked hard to curate.

Currently IPSA and our IP Empowerment For All subcommittee is in the process of updating research on current legislative proposals regarding NIL. This research will be imputed into a one-pager that more thoroughly addresses the need for particular federal legislation in this area. Then, we can utilize the paper as a tool to persuade our peers and colleagues to sign a petition in support of the proposal. While the NCAA’s proposal to Congress is effective in addressing uniformity, the language of the proposal is still very restrictive for student athletes.

As a result, we are working diligently to ensure that the proposed bill we choose to endorse and share addresses concerns across our communities and reflects our mission of social justice.

We are confident that armed with the correct information, many people will see that this proposal is long overdue. Please continue to check this space for our selected proposal and link to our petition!

Blog Post On Diversity and Innovation

Blog Post on the Importance of Diversity and Innovation

by Tashia Bunch, IIPSJ Administrative Director

The 2018 SUCCESS Act required the US Patent and Trademark Office (USPTO) to work with the Small Business Administration (SBA) to determine the number of patents owned by women, minorities, and veterans and to provide recommendations to increase that number. A report was provided in 2019 that included steps the USPTO plans to take as well as legislative recommendations. One such step by the USPTO was the launch of the National Council for Expanding American Innovation (NCEAI) initiative last month. The initiative includes representatives from private companies, academia, and government to help the agency develop a comprehensive national strategy to build a more diverse and inclusive innovation ecosystem.

As we explore ways to build this ecosystem, we must acknowledge why this is important to the country as a whole and specifically in minority communities, identify current barriers to equal access and opportunities, and provide solutions for breaking down those barriers.

We know that increasing innovation is valuable to society as a whole. This idea appears in the U.S. Constitution when it grants Congress the power to issue patents and copyrights in order to promote the progress of science and useful arts. Today, the United States promotes itself as a global leader and continuing contributions in science, technology, engineering, arts, and math (STEAM) fields are necessary to remain in that position. Moreover, creativity and innovation often lead to new business ventures and avenues for income contributing to the national economy and job creation.

Increasing IP creation and ownership in minority communities will contribute to these societal goals. It is also important to address economic justice principles of equitable access to financial opportunities. Creativity and innovation can lead to financial freedom through IP ownership and entrepreneurship. Access to education in STEAM fields beginning as early as elementary school as well as resources and community programs providing access information and assistance in protection and monetization can help expand IP creation and ownership in minority communities. As such, we strongly advocate for policies and programs providing education and access to the tools and information necessary to innovate and to monetize their innovations.

IIPSJ encourages a continuing dialogue on this important topic both on the impact and value of diversity in innovation and creativity and on ways to increase diversity in STEAM fields. Earlier this year at our annual CLE program, we featured a panel presentation titled “Remembering Invention of a Slave: Patents and the Continuing Struggle for Civil Rights”, which discussed inventorship and the struggle to acquire patents in the African American community from slavery to the present. You can view this discussion on our YouTube channel.

We have also shared a variety of materials discussing the topic in our monthly newsletter. Materials such as the NPR podcast and post detailing how conditions during the periods of post-Reconstruction and Jim Crow obliterated the legal incentives for black inventors to apply for patents and otherwise undertake innovative endeavors. Along with the story of Percy Julian, a chemist who managed to innovate and acquire over 130 patents during Jim Crow. Additional links below.

IIPSJ will continue to engage in continuing conversations on this topic, advocating for policy changes to serve minority communities and looking for other ways to help further the conversation and make change.

– USPTO launched the Expanding Innovation Hub, an online platform available on the USPTO website that provides resources for inventors and practitioners to encourage greater participation in the patent system
Invention of a Slave and the Ongoing Movement For Equal Justice, by Dennis Crouch
– Motion Picture Association panel “Understanding Copyright’s Role in Diverse Storytelling
– Copyright Alliance – Educational content addressing race and racism