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Wednesday, October 17, 2007
Eighth Circuit's "Public Domain" Rationale Provides No Workable Standard for Right of Publicity Claims

Yesterday, the Eighth Circuit Court of Appeals issued its 13-page ruling in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. and affirmed the ruling of the United States District Court for the Eastern District of Missouri. The full opinion is available here.

In Missouri, the elements of a right of publicity action include: (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage. The district court concluded that the evidence was insufficient to establish the "identity" and "commercial advantage" elements. But the district court was clearly wrong on that conclusion as a matter of law because there is no dispute that fantasy league operators are using the players' names for a commercial advantage in the games they are selling to the public. The Eighth Circuit disagreed with the district court and correctly found that the players established a cause of action for right of publicity: "Because we think that it is clear that CBC uses baseball players' identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law." I'm glad to see that the Eighth Circuit put to rest the flawed notion that fantasy leagues are just using statistics and not players' identities.

The court of appeals held that the First Amendment nonetheless trumps the right of publicity action because "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone." (emphasis added) Actually, it would NOT be strange law. I can assure you that there is no authority for that proposition in the context of right of publicity actions, and that's because it provides circular reasoning. Public domain, which is an intellectual property concept, simply means the public has a right to certain information, documents or writings because nobody else has rights to it under the law, for example under right of publicity law. Wouldn't it be "strange law" to say that individuals have no right of publicity if their names are in the public domain? Famous people, by virtue of their fame and fortune, are, by definition, in the public domain. Indeed, the more famous they are, the more they are in the public domain, and thus, the more likely it is that third parties will desire to use their names for commercial gain. In fact, that is the basis for even recognizing right of publicity as a cause of action.

The court's "public domain" reasoning is simply not a workable standard for evaluating when the First Amendment trumps a right of publicity claim. How is a court to use this standard in the context of other uses, for example use of players' identities in baseball cards, in video games, or on a cereal box? At least the court of appeals put to rest the notion that a picture somehow strengthens a right of publicity cause of action over merely using the name (which did seem to influence the district court). In support of its public domain rationale, the court relied on the Cardtoons case involving Cardtoons' parody trading cards featuring caricatures of players with humorous commentary about their careers. But that case is clearly distinguishable because the use by Cardtoons involved social commentary on public figures, the type of creative expression protected by the First Amendment (another case along those same lines is the Tiger Woods case which involved the defendant painter's expression through art work).

The court of appeals also justified its holding on the grounds that "major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements." This justification seems odd to me for a few reasons. First, it has absolutely nothing to do with First Amendment principles. Second, the court is making its own subjective assessment about acceptable ways that certain individuals should be able to make money. The court provides no standard for determining when it is acceptable for players to be compensated in a particular context. Third, while the court suggests that players should be able to make money from endorsements and sponsorships, it obviously begs the question as to why the court's public domain rationale wouldn't trump that right as well. How is a court to analyze baseball card and video game use under this standard?

So instead of clarification involving the First Amendment and right of publicity, I walk away from the court's opinion even more confused. I wonder if the Supreme Court would endorse the Eighth Circuit's public domain standard?


Ah yes... the old "athletes make enough money anyways" argument. Isn't it nice to see legal reasoning backed up by the income standard of a few men and women in black...

at least it's nice to see the court agree that there is identification here, even if it then tosses it aside for an ever expandnig First Amendment over the right of publicity.

Blogger Jimmy H -- 10/17/2007 3:55 PM  

Is there any danger of this ruling being overturned by the Supreme Court?

Blogger themaroon -- 10/17/2007 7:50 PM  

Virtually none. There is nothing that would cause SCOTUS to take this case. There is no split of lower authority, SCOTUS does not care about what Missouri law means, the 8th Circuit was not obviously wrong, and the lower court upheld the federal claim of right.

Blogger Howard Wasserman -- 10/17/2007 9:26 PM  


I disagree. It's a First Amendment issue, not just a Missouri law issue. Also, there already was plenty of confusion in this area of the law, and the Eighth Circuit's opinion not only provides even more confusion but it also conflicts with the Second Circuit's opinion in Haelan Labs. Finally, and probably most importantly, it involves sports!

Blogger Rick Karcher -- 10/17/2007 9:44 PM  

This is interesting to me because I am trying to get clear in my mind how far either side could run with the ruling given if it is upheld or overturned.

Let's say it's overturned and the result is names and statistics can be covered by a right of publicity claim. Could Barry Bonds take action against the Las Vegas Sun for publishing his box scores? His name and statistics are published, and the newspaper is getting revenue for the publication, so it is being done for commercial advantage. Or, could Hollywood celebrities go after tour operators that are taking commercial advantage of the statistics of stars' addresses combined with their names (likenesses) for a commercial advantage? How about fact-based games like Trivial Pursuit or Jeopardy? Or, how about athletes going after Las Vegas sportsbooks for offering wagers on athletes performances?

Now if the ruling is upheld, how far can one go without losing the safe harbor of the First Amendment?
Can fantasy sports operators now do more than names and statistics? Can they offer near-real time commentary on games? How close can they go to a de facto replication of a broadcast?

Two other questions. The first deals with an issue that the 8th Circuit did not address and that was the possibility of the Copywright Act trumping the right of publicity. If the First Amendment claim fails at the Supreme Court, would the Copywright Act argument be considered concurrently and ruled upon?

The second question is the question more focused on MLB's wait to enforce their rights for about 20 years after it was known that fantasy baseball was being conducted on a for-profit basis. Is it possible that MLB could be right on everything, but lose because they waited too long to enforce their rights?

Sorry for the long post, but I can see how this discussion could spawn many others!

Anonymous Anonymous -- 10/17/2007 10:00 PM  

It is the right decision (twice now). You don't have to be a lawyer or law professor to figure out why. You are thinking way too hard on this one.

Anonymous Anonymous -- 10/17/2007 10:21 PM  


In evaluating the First Amendment's application to right of publicity, the focus must be on the particular USE of the name or likeness. The use by news reporters is to report news, which is a non-debatable FA protection. That's why names in box scores do not afford a right of publicity cause of action. If you cut Barry Bonds' picture out of the paper, put it on a shirt and sell it, the use is no longer protected by the FA. If you and your buddies grab all of the players' stats out of the paper and play a fantasy league game among yourselves, there isn't a right of publicity problem unless you sell it to somebody. The use by fantasy leagues is not to report news, it's to sell a game to the public. The reason the public pays gobs of money for it is BECAUSE OF the fact that the game involves famous athletes. The game simply does not sell if operators were to use the local lawyers softball league. Therefore, the court was careful not to focus on the USE, because if it did, the court would be hard pressed to say it's protected by the FA. So instead, the court uses the phrase "public domain". Well, that simply cannot work in application to right of publicity claims (maybe it does in other contexts) because it essentially eliminates any right of publicity cause of action.

Technology/Internet has created a mindset that the public somehow has a right to use any information it wants. It's easily accessible and appears to be "free" (even though it's really not). So the initial inclination is to say, "who do these guys think they are wanting to profit off of this stuff?!" But online fantasy league games are the equivalent to packaging their identities within a board game and selling it (most would say there is no FA protection there).

In the examples you raised (and I've heard all of those before, with the exception of the Hollywood celebrity example which I'm not sure I understand), my response is to simply say, maybe they should have a right of publicity. Now, the claim may or may not be worth pursuing. But why do we just tend to assume that it is ludicrous to think that these examples do not afford a cause of action? Is it a concern that these products will no longer be offered? Is it a fairness issue, such that we don't think these people deserve a dime in this context?

If I was the President of Topps or EA Sports, I'd probably fax a copy of the Eighth Circuit's opinion to the union and demand a refund.

Blogger Rick Karcher -- 10/18/2007 6:53 AM  

How about this for a translation of the decision of the case (forget 1st amendment and right of publicity blah, blah, blah, and just cut right to the chase): "MLB and MLBPA make enough money. Let's allow private company and average Joe to enjoy fantasy sports without filling their swollen pockets any more. ~So ordered." (Then the court adjourns and one of the judges goes back to his chambers and immediately drops Ben Watson from his fantasy football lineup while another judge ponders whether or not he should join a local fantasy hockey league).

Anonymous Anonymous -- 10/18/2007 7:44 AM  


Are you one of the Eighth Circuit justices? Because that's basically what the opinion says :)

Blogger Rick Karcher -- 10/18/2007 9:07 AM  

Maybe :)

Anonymous Anonymous -- 10/18/2007 9:29 AM  

Anon 7:44,

Great comment, you really nailed that one!

As for the Hollywood celebrity question raised by Anon 10:00:

I think what you are referring to are the open bus tours that drive tourists armed with cameras around holywood to look at all the celeb houses. I wouldn't think you would have a protected interest in your physical address, but i think you could have a claim if the company used the celebs pictures and names as the primary selling point on flyers, or put the celebs images on on the bus etc...

Blogger Jimmy H -- 10/18/2007 12:20 PM  

The public domain argument isn't that weak.

Fantasy baseball began over 40 years ago and became the subject of a series of articles and columns over 25 years ago. The seminal book that really got it going was published 23 years ago. Back in 1989 you could call a 900 number for draft help. Some annual publications were already being published that gave analysis of players for the games.

Commercial services providing online league scoring appeared on the internet 10 years ago.

The idea of stat based games using player names was already in wide economic use for an extended time before there was any attempt to protect any intellectual property right in player names tied to statistics.

Also of note. It's not the player name that carries value in the games, the name is merely an idenitifier to match the statistic to a player. The games are not about having Barry Bonds on your team but rather having the best performing player. While some probably play the games picking favorite players the devotees of the game are far less interested in the name than the stats produced.

Blogger Mark -- 10/18/2007 1:30 PM  


If the name isn't really that important, then the fantasy leagues that choose NOT to contract with MLB Advanced Media should be limited to say STL 1B #5, not Albert Pujols, 1B STL. I can guarantee you that the leagues that would not use player names would loose most if not all of their business to the leagues that could use the names...

Blogger Jimmy H -- 10/18/2007 1:49 PM  

But it's not the name of the player driving the business. It's the statistical information.

Is there more value if you have the names? Of course because it makes identification easier. Is it what drives the business? No, I don't think so.

Blogger Mark -- 10/18/2007 3:55 PM  

Mark and Jimmy,

Even if the names were not used, the players would be able to meet the identification element for a right of publicity cause of action. In other words, the actual name does not need to be used as long as it can reasonably be inferred that the plaintiff is the subject of the use by the defendant.

Blogger Rick Karcher -- 10/18/2007 6:07 PM  

Most of my friends at cocerned whether it can bring negative effect.

Anonymous Anonymous -- 10/19/2007 3:15 AM  

I'm going to put the Eighth Circuit's holding in really simple terms. The term "public domain" means the public owns it. The sole question in the case is whether the players own it. The court says the reason the players don't own it is because the public owns it.

Blogger Rick Karcher -- 10/19/2007 7:43 AM  

Should this ruling be interpreted such that board game companies like APBA or Stratomatic (or their computer software versions) would no longer require licensing agreements to use MLB player names and stats (as long as they use no logos or photo likenesses)?

Anonymous Anonymous -- 10/20/2007 3:15 PM  


Whether the use involves pictures doesn't make the case stronger than the use of just names. All that is necessary is that the "identification" element is met, and the element is clearly met when the use involves names (and the Eighth Circuit aknowledged that as well). Bottom line is that the Eighth Circuit's holding is inconsistent with Haelan Labs. (which held that players have a right of publicity when their identities are used in baseball cards), as well as other federal and state cases involving use of identities in board games. I'm not sure what the Eighth Circuit considers to be a violation of the right of publicity under its public domain standard. There is one statement in the opinion where the court seems to imply that unconsented use through advertisements and endorsements would constitute a violation, and I guess that's just because the court thinks the players "deserve" to make money in that context.

Blogger Rick Karcher -- 10/22/2007 11:08 AM  

Haelan Labs: Before Internet
This case: After Internet
Haelan Labs: Pittance of $
This case: $$$$$$$$$$$$$$$$$
Consistent? No.
Changing times? Yes.
Fans win.
Players lose.
Get on with life...(and note that Cleveland is playing this week so put B. Edwards and D. Anderson back in already...)

Anonymous Anonymous -- 10/22/2007 12:10 PM  

Internet? Irrelevant

Fans win? No they don't; they pay the same regardless of the outcome.

$$$$$$$$$$? Yep, and the only reason the fantasy league operators make it is because of the players -- use the local lawyers softball league if it's not because of the players

Blogger Rick Karcher -- 10/22/2007 3:17 PM  

This case is about $$$ plain and simple. It is not about 1st amendment or right of publicity (at least to the 8th Circuit). The players are sooooo being used by the fantasy operators that it amounts to complete and unbridled commercial exploitation. I feel so bad for all the players. NOT.

Anonymous Anonymous -- 10/22/2007 5:00 PM  

Rich --

Great take on this issue. It is a terrible decision, in which the justices created law so their preferred side would win. It seems in too many of these cases, the more sympathetic party wins, regardless of the law. Rich baseball players and Tiger Woods lose, Rosa Parks and down-on-their-luck former hockey players win.

Anonymous john -- 11/01/2007 3:10 PM  


In your opinion, how does this ruling affect the horse racing industry. Jockeys' have argued that the relatively recent change in the wagering activity of their sport (a prime drive of revenue) from on-track betting to simulcast wagering (inclusive) has made the importance of their individual and collective media rights substantially more valuable. This decision seems to lend credence to their argument in that the justices agreed that state right of publicity laws are not automatically trumped by federal copyright law. Jockeys' as independent contractors (collectively represented by the Jockeys' Guild) should be studying this decision very carefully. Do you agree?

Anonymous Albert -- 11/02/2007 11:52 AM  


Thanks for the comment. The opinion definitely creates more confusion under the law than we already had. This "public domain" standard would preclude all public figures from establishing a cause of action, including Rosa Parks, in any context (unless, as you suggest, the court just has sympathy for somebody and thinks he/she should be compensated).


Interesting question. I know nothing about that industry, let alone simulcast wagering activity associated with it, so it is difficult for me to comment. But I would add that right of publicity actions are not preempted by federal copyright law because copyright law protects works of authorship, not identities (names and likenesses) which are protected by state right of publicity law.

Blogger Rick Karcher -- 11/05/2007 6:27 AM  


Just watch TVG or HRTV and see these television networks show the jockeys name and face during the post parade (race warm up and betting show) ten minutes before the race. Jockeys get paid a fee (ave. $50) from the horse owner for riding his/her horse, but do not get any conpensaton from the track owner who gets paid handsomely from all of the wagering activity.

Is using the jockey's name, likeness, and statisical information (racing accomplishments) by the race track (and these wagering outlets) a violation of his or her right of publicity. Do the jockey's have a cause of action since they do not get paid by the "bookie"? Do they have a historical cause of action to recover damages for the un-licensed use of their image, likeness and name?

Anonymous Albert -- 11/09/2007 2:50 AM  

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