Surfing has ancient roots. Polynesians were riding waves three thousand years ago, and when they settled in the Hawaiian Islands around 400 C.E., they brought the tradition of surfing with them. Long before it became the sport everyone knows today, surfing was central to Polynesian culture. It was a religious practice, a component of warriors’ training, and even a way to resolve disputes. However, surfing was reserved for only upper-class Polynesians—tribal chiefs were the most skilled surfers, using it as a form of prayer and to demonstrate power. Later, when the practice of surfing arrived on Hawaii, it continued this tradition. Only the Hawaiian Kings surfed on the ancient “olo,” a long board roughly 17 feet and made of the most precious local wood. While commoners were not allowed where the royalty surfed, plebeians were permitted to master surfing skills, thereby improving their social status.
Despite its long history and tradition, surfing only became known to the rest of the world after 1779, when Captain James Cook described Hawaiians surfing at Kealakekua Bay on the Big Island. After that first encounter with Europeans, surfing began to lose touch with its original tradition, as haole (foreigners) began coming to the islands and the Christian colonization banned surfing. Ironically, when three Hawaiian princes were sent to a California Christian academy, they successfully introduced surfing to North America—specifically, Santa Cruz.
Thereafter, the sport developed quickly and has since become very popular around the world. Along with the spread of surfing’s popularity came the growth of various related associations, surfing clubs, and a variety of competitions. The use of surfing competitions can be traced all the way back to ancient traditions, but around the 1960’s the concept of professional surfing developed, involving competitions with money awards. Over time, the money prizes awarded in surfing tournaments became more substantial, and a greater number of professional surfers started to get paid through sponsorships as well. In its beginnings as a professional sport, surfing could offer few financial incentives to participate. Today, professional surfing has grown into a $10 billion industry, and there are a large number of professional surfers who compete in the most prestigious championships, such as the World Surf League. In a recent unanimous decision, all 90 members of the International Olympic Committee approved the inclusion of surfing in the (now-postponed until 2021) “Tokyo 2020” Olympic games.
However, as the surfing industry’s involvement in the commercial world has grown, so have its legal conflicts—contract disputes and IP infringement cases are now a daily occurrence in the surfing world.
For example, in 2018 two-time World Champion John John Florence sued Monster Energy in California, alleging – among other things – breach of contract, lack of compensation for use of his image, and fraud.
The pro surfer (pictured left) claims that he entered into an agreement “signed and approved” by Monster that entitled him to a minimum of $500,000 a year, plus the potential for $150,000 more per year in incentives. Florence further claims that a Monster marketing executive confirmed in a March 16, 2017 email that the champion would receive retro-pay from the start of the year.
According to court documents, Monster sent Florence’s team a “long-form draft” of the agreement in May 2017 that looked different than what was previously agreed upon. The court filings allege that “Monster has failed and refused to pay [Florence] any amounts whatsoever under the 2017 agreement,” despite “[continuing] to use advertisements for its products featuring Florence’s name and likeness… into 2018 and possibly later.” Florence’s complaint seeks remunerations for “embarrassment, humiliation, and emotional distress,” as well as punitive damages, compensatory damages, treble damages, and interest at the legal rate. According to documents filed by Monster’s attorneys in response, Monster Energy “denies each and every allegation.” The company specifically claims that Florence’s complaints are “invalid because the contract(s) were never put in writing and subscribed/signed by Monster and Florence.” This case illustrates just some of the legal issues that may arise out of pro surfers’ endorsement contracts in the modern-day surfing industry.
In addition to lawsuits involving professional athletes, there are also many legal disputes implicating well-known surf brands. In 2011, Volcom, Inc. – a boardsports-oriented brand famous for its diamond-shaped logo – filed a lawsuit against Beyoncé’s husband, Jay-Z, over his brand Roc Nation’s use of a diamond logo.
The basis of the lawsuit was the “‘double diamond’ design common to both logos.” Volcom claimed that Jay-Z’s use of the logo caused “a likelihood of confusion among consumers.” While Roc Nation claimed its logo was unique and did not result in any copyright infringement, Volcom nonetheless asked the brand to cease and desist its use of the diamond logo on several occasions. One of the reasons behind the legal pressure applied by Volcom is that its subsidiary, Volcom Entertainment, uses the diamond logo to market music-related merchandise and sponsor bands—thus, it operates in the same industry as Roc Nation, increasing the potential for brand confusion.
These lawsuits demonstrate how the commercialization of the surfing industry has resulted in the legal intertwinement of pro surfing with other entertainment and sports industries.