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Thursday, February 28, 2008
Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy League Ruling

Eric Fisher of Street & Smith's SportsBusiness Daily reported today that MLBAM and the MLBPA have filed a petition for a writ of certiorari to the U.S. Supreme Court, arguing that a series of prior lower court rulings involving First Amendment and right of publicity issues have created an inconsistent mess, and that "the appropriate legal test for balancing state-law publicity rights and First Amendment interest is a recurring and important question on which this Court's instruction is needed. ... The same use of a famous person's identity will be unlawful or constitutionally protected depending upon which jurisdiction first addresses that use an outcome that is fundamentally unfair, particularly to national businesses." Fisher notes that "[t]he vast majority of petitions for a writ of certiorari are denied, particularly for civil cases such as this, and MLBAM and the union are seeking to improve their chances by arguing to the broader need of a uniform standard for right of publicity disputes." As I have argued before, the Eighth Circuit's public domain standard is simply not a workable standard for determining whether the First Amendment trumps a right of publicity claim.

In my Penn State Law Review article, which can be downloaded from here, I propose that right of publicity claims can be assessed utilizing a "commercial advantage spectrum" that incorporates First Amendment considerations. At the purely "non-commercial" end of the spectrum, the primary purpose for the defendant's use of a celebrity's identity is not to gain any commercial advantage, e.g. news reporting uses, entertainment (i.e. movies, films) and literary works, which are privileged under the First Amendment based upon either the public's right to know or the public interest in free expression. At the other end, the purely "commercial end," the celebrity's identity is being used to demonstrate to consumers that the individual is associated with, or approves of, the user or the user's product or service, e.g. advertisements, endorsements and marketing efforts, which clearly violates the right of publicity.

The confusion arises with respect to those uses that fall somewhere in between the two ends of the spectrum, which can be referred to as "quasi-commercial" uses, i.e. video game use, trading card use and fantasy league use. In my article, I propose a standard that entails a two-part inquiry:
(1) Is the celebrity's name or likeness being used for a purpose other than news reporting, entertainment (i.e. movie, film), or literary?
(2) If so, is the celebrity's name or likeness the "essence" of the product or service being produced such that the product or service is dependent upon such use for its existence?
When the content for a product or service is based almost exclusively on the celebrity's name or likeness, it is unfair and not good policy to allow the producer to reap the full commercial value of the celebrity's identity. The most efficient allocation of resources is obtained in a free market by which producers of products and services compete for the right to use celebrities' identities, and the celebrities and producers are incentivized to negotiate licensing fees based upon what the market will bear for such use.

UPDATE (2/29/08): USA Today's press release on the filing of the petition for writ of cert. states: "Using First Amendment and right of publicity arguments, MLBAM and the union have argued that players should be paid when their names are used for fantasy baseball leagues, in the same way players are paid when their names are used to endorse products. But the lower courts found that fantasy leagues' broad use of statistics isn't the same as faking an endorsement from a player and not paying him." However, USA Today's statement misconstrues both MLBAM's and the union's position as well as the lower courts' determinations, and implies that the right of publicity is only violated by fake endorsements -- which is simply false. Contrary to what is stated in this press release, neither the district court nor the court of appeals ruled as such, and MLBAM and the union are not comparing fantasy league use to endorsement use. USA Today conveniently omits that the holdings of the lower courts are inconsistent with the fact that players are paid for use of their names in non-endorsement contexts as well, such as trading cards and video games.


I think the C.B.C. case was decided correctly and respectfully (and strongly) disagree with your position.

In a forthcoming law review article titled A Triple Play for the Public Domain: From Delaware Lottery to Motorola to C.B.C., which arises out of my participation in a symposium on publicity rights recently hosted by the Chapman Law Review, I argue:
"A trilogy of cases decided by federal courts over the past 30 years correctly holds that game scores, real-time game accounts, and player statistics are in the public domain. There is a consistent thread in these federal cases, based on sound legal, public policy and economic analysis, which justifies judicial rejection of state law claims by sports leagues and players asserting exclusive rights to this purely factual information. The creation of a collateral product incorporating merely public domain information about a sports event or athletes’ performances, including fantasy league games, is not (and should not be) infringing absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act, which provides a federal statutory right to prevent trademark infringement and unfair competition. These courts implicitly recognize the need for a uniform national standard to determine the nature and scope of one’s rights to use this nationally distributed and available public information for commercial purposes without authorization."

"Like an unauthorized biography of a famous professional athlete, questions about his sports records in a Trivia Pursuit or Jeopardy game, or a board game incorporating his playing statistics, a fantasy sports league is based on facts in the public domain and uses his name only for descriptive purposes." In my view, "the commercial benefit that CBC derives from its fantasy baseball league is irrelevant when public domain facts (i.e., baseball statistics), which may be freely used by the public, is the essence of its game." I believe that "[e]xtending the right of publicity to require CBC to pay a licensing fee would give players a legally and economically unjustified exclusive property right that will preclude the commercial use of public domain information, reduce the availability of collateral products, and/ or increase their costs to consumers."

Matt Mitten

Anonymous Anonymous -- 2/29/2008 8:55 PM  


Thanks for the comment and I look forward to reading your article.

Your argument works on the assumption that this case should be viewed as a copyright or trademark case, which I (respectfully) think is a flawed analysis. I don't think it should be viewed as such for many sound legal, policy and economic reasons. I'm not aware of any case expressly holding that a right of publicity claim should be analyzed using copyright law or trademark principles. Even the Eighth Circuit didn't analyze it that way. Its application of the "public domain" concept, which is derived from copyright law, is even more curious in light of the fact that the court held that (1) the players effectively established a right of publicity claim, and (2) the players' right of publicity claim is not preempted by copyright law.

Indeed, an application of copyright law in this case is even inconsistent with the holding in Motorola (which you rely heavily on), which determined that the state law misappropriation claim was not preempted and the court then applied state misappropriation law (not copyright law) to the facts of the case. In applying misappropriation law, the Motorola court held that there was no misappropriation essentially on the grounds that there was no "free riding" -- Not on any grounds whatsoeverthat statistics are in the public domain because, if public domain was the justification, there couldn't possibly be a misappropriation and the court wouldn't have even addressed whether there was an appropriation! That's my fundamental problem with applying a public domain rationale because it essentially just provides a conclusion without even applying the elements of the state law claim.

The rationale for carving out public domain facts from copyright protection is sound because copyright is designed to protect what the producer created, i.e. "the original work of authorship," which allows the producer to reap the economic benefits from the expression he created but not the facts within his expression because he didn't create them. So I struggle with not only WHY copyright law concepts should apply in any right of publicity case including this case, but also HOW to even apply copyright principles to right of publicity claims. I suppose copyright would apply if fantasy leagues were claiming copyright protection in their games, and the issue being whether the production of the games (together with the players' names and performance statistics) constitutes an original work of authorship.

Applying copyright principles to this case conveniently shifts the focus towards the efforts and expenditures of the fantasy leagues in creating the game and away from the efforts of the players who created the precise element that allows fantasy leagues to profit in a $1.5 billion industry. In doing so, you are not recognizing the principles and policies behind right of publicity law, meaning that somebody should not obtain a commercial advantage and thus be unjustly enriched from the creation of an individual's celebrity status, which is why Haelan Labs. found a right of publicity in trading card use (not to mention a whole line of cases upholding right of publicity claims in both endorsement and non-endorsement contexts, none of which applied copyright law principles).

I also think a public domain concept in evaluating First Amendment considerations in the context of right of publicity claims is flawed as well. The focus must be on the defendant's USE of the identity. What's the justification for First Amendment protection in the production of a game? I just don't see it. I agree with you that the unauthorized biography you mention satisfies the test.

Finally, I don't understand your last statement that recognizing an exclusive property right would reduce availability and increase costs to the consumer. First, how do we know that? The notion exists that these games are free to the consumer, but the consumer actually pays in the form of advertising costs. If a right of publicity is recognized, the more likely scenario is that it may result in a slight reduction in profits generated by fantasy leagues. Second, even if you are correct, why is that a bad thing? That's how our economy and markets work. All producers of products and services incur production costs (which includes the purchase of raw materials) and they factor those into their business model -- why should fantasy leagues be treated differently? To the extent there are any concerns, prospectively, regarding monopolization or reduction in quality or output, those would be appropriately addressed by antitrust.

Blogger Rick Karcher -- 3/01/2008 8:19 AM  


Thanks for your response, which I expected my post would generate, but allow me to better explain my argumen because you are mischaracterizing my position and reasoning.

As you know, copyright and trademark law, like the right of publicity, create property rights and draw lines between exclusive individual property rights and the public domain. My main point, which I didn't articulate very well by simply selectively quoting from part of my forthcoming article, is that there is no misappropriation of any player's identity in this case. Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities. This purely factual information, which is not protected by copyright law (or patent law), is in the public domain and may be freely used and incorporated into new products by all unless such usage creates a likelihood of confusion regarding approval, endorsement, or sponsorship of the fantasy game.

It's true that game participants select players by name, but this is merely a descriptive or incidental usage to identify the particular set of player statistics they are choosing rather than misappropriation of any player's identity. This distinguishes C.B.C. from Haelen; I agree with your view that a player's identity (not his playing statistics) is the product represented by a baseball trading card. It's difficult to distinguish board games from on-line fantasy games. Both are based on factual information that, in my view, should not be exclusively owned by professional athletes or celebrities whose accomplishments are its underlying basis. Thus, I don't think that Uhlaender, Arnold Palmer, and Howard Hughes cases were correctly decided.

Motorola and Delaware Lottery, 435 F.Supp.1372(an important case you may be unfamiliar with and failed to address in your response)support my argument that C.B.C. was correctly decided. I actually think the district court's opinion is better reasoned, although the Eighth Circuit reached the correct result and the underlying basis for its decision (e.g., public domain factual information is not subject to exclusive ownership) is consistent with those cases.

Contrary to your assertion, Motorola expressly held that "the NBA's misappropriation claim based on New York law is preempted." More importantly, the court held that defendants had the right "to collect purely factual information generated in NBA games" and to incorporate it into a collateral product such as a handheld pager. Motorola (and Delaware Lottery) essentially hold that a party whose efforts create sports-related factual information does not own it simply because it has commercial value. Rather, it is in the public domain and may be used by others for commercial purposes.

Why doesn't this sound rationale also apply to fantasy baseball leagues? If the players don't have an exclusive property right in their statistics, how can they have a valid right of publicity claim? Surely the law shouldn't prevent producers of goods and services from using the names of individuals to truthfully describe or identify their respective goods and services if doing so doesn't create any likelihood of consumer confusion. If sports leagues have no right to prevent legalized gambling based on the scores of their games (I'm not arguing that sports betting should be legal), how can the players prevent fantasy league operators from using their playing statistics in games? Furthermore, how can you have a principled analysis of state publicity rights laws without first defining the nature and scope of the property right and considering what's in the public domain and protected by the First Amendment?


Anonymous Anonymous -- 3/01/2008 11:18 PM  


I appreciate you clarifying your position and you make some good arguments. But let me start by saying that I don't believe that I mischaracterized your position and reasoning. Your recent response, again, indicates that your position primarily relies upon principles of copyright, trademark and unfair competition laws. And I don't believe that is a proper analysis in evaluating right of publicity claims for the reasons I stated in my first response.

While I wasn't exactly clear in my response about the preemption issue in Motorola, I don't believe I was incorrect. As you know, the court held that "a narrow 'hot news' misappropriation claim survives preemption for actions concerning material within the realm of copyright." The court then addressed whether the defendants "engaged in unlawful misappropriation under the 'hot news' test". The court then concluded that the defendants did not unlawfully misappropriate on grounds that the elements of misappropriation that survived preemption were not established (primarily "free riding" by a defendant). The court did not base its holding on grounds of "public domain" which seems to be what you are suggesting.

But the Motorola preemption issue is neither here nor there because the lower courts in the fantasy league case have correctly decided that right of publicity claims survive preemption (which I assume you agree as well). Therefore, in my opinion, it seems oxymoronic to then be applying copyright law principles to a right of publicity claim.

In evaluating right of publicity claims, focusing on concepts of "likelihood of consumer confusion" as well as unfair competition is also misguided because the celebrity is not in competition with the user of his/her identity. Right of publicity law focuses on identity and commercial advantage. Commercial advantage and exploitation is fairly compelling here. The identity element has never been interpreted by courts to require an endorsement (as you acknowledge that Haelan Labs was correctly decided).

I'm not aware of any cases rejecting a right of publicity on grounds that the name was being used for descriptive purposes only (as you suggest) -- That's a trademark concept which seems to have relevance only in the context of consumer confusion, and source identification and origin (which are simply not applicable in a right of publicity claim). So I struggle with how that carries over to right of publicity claims. Indeed, courts oftentimes go out of their way to hold that the identity element is established even in situations when the actual name or likeness is not being used. I agree with the Eighth Circuit that the identity element is met here, and I would make that conclusion even if the actual names were not being used so long as it was obvious which players were being identified. I think the Eighth Circuit pretty much determined that this game would not generate $1.5 billion using the lawyers league softball players.

In my opinion, you and I disagree on how to handle what I refer to as the "quasi-commercial" uses. Applying principles from areas of law other than right of publicity and First Amendment leads to inconsistent results and lack of uniformity. If consistently applied, copyright/unfair competition principles would necessarily lead to the conclusion that ALL quasi-commercial uses (which includes trading cards and fantasy leagues) are not protected by right of publicity law, leaving only protection for endorsement use. However, it seems that you want to carve out an exception for trading card use on the grounds that the identity element is met there -- when the only relevant distinction between fantasy leagues and trading cards is a picture, and it's extremely unclear to me why that's a relevant distinction from a legal, economic or policy standpoint. However, it's interesting because people generally think there is (and should be) a recognizable distinction, but I have yet to hear a clearly articulated legal argument as to why.

So I guess I'm not in favor of applying copyright/unfair competition laws to right of publicity claims in some contexts (fantasy leagues) but not others (trading cards). And I'm not suggesting that's what you are advocating -- that's purely my interpretation of what's going on.

Blogger Rick Karcher -- 3/02/2008 8:54 AM  


I agree that the fantasy league case involves an unauthorized "commercial" use, as does every right of publicity claim brought by professional athletes or other celebrities.
Although we reach different conclusions, we agree that a key issue is whether there is any misappropriation of a player's identity as required by state law.

I argue that there is not because: 1) CBC has not used any player's name to advertise or promote its fantasy game (which would violate the right of publicity even absent a likelihood of consumer confusion); and 2)it is not selling a product whose essence is the player's identity (e.g. a trading card, name and/or number on a shirt, or a bobble head). I think this is a reasonable limit on the scope of publicity rights, which is well supported by analogy to the Delaware Lottery and Motorola cases. Yes, I'm taking a macro view of the appropriate scope of intellectual property protection for sports-related factual information and focusing on the consistency of Delaware Lottery, Motorola, and C.B.C., an approach with which you disagree for reasons I don't find persuasive. Contrary to your assertion, this approach does lead to consistent results and uniformity.

The essence of a fantasy game is player statistics, which are in the public domain and not the exclusive property of the players, league, or clubs under any legally recognized theory of intellectual property including the right of publicity. If the law were otherwise, a newspaper or baseball digest could not publish box scores or season statistics with the players' names as identifiers (or use this information in a Trivia Pursuit or Jeopardy game) unless their authorization was obtained. (And the former MLB players would have won the Gionfriddo case.) Whether it is explicitly characterized as "fair use" or not, this is in fact a form of permissible descriptive use that is a well-recognized defense in right of publicity cases based on either plaintiff's failure to prove misappropriation of "identity," or defendant's First Amendment right to use information in the "public domain." See the Abdul-Jabbar case in which I think the Ninth Circuit properly defined the outer limits in which the unauthorized use of a player's name in connection with his playing statistics and accomplishments violates the right of publicity.

You apparently concede that my premise (i.e., player statistics are in the public domain) is correct but argue it is irrelevant in a right of publicity analysis. In addition, you seem to conflate the commercial and identity elements, which are in fact separate requirements, by arguing that the players' publicity rights must be violated because fantasy leagues games generate $1.5 billion. Although I can understood why a former professional baseball player believes that MLB players should get a cut of the operators' profits, I think your view extends the right of publicity too broadly.

I'm enjoying our debate and will give you the final word for now. Looking forward to seeing you at the SLA conference in May, where this debate likely will resume, especially if the Supreme Court accepts MLBAM's cert petition.


Anonymous Anonymous -- 3/02/2008 1:11 PM  

I knew it! I'm still waiting to hear any reason whatsoever, compelling or not, (from anybody) why trading cards should be treated any differently than fantasy leagues -- other than players make enough money already. If fantasy leagues started including mug shots, or better yet bobble head mug shots, I guess that would change the entire analysis. What is so compelling about an image that dictates a different outcome? I look forward to your answer in 3 months.

But seriously, thanks for taking the time to comment and debate. And one thing we both agree is that hopefully the Supreme Court will grant cert. How ironic it would be if the Supreme Court decides not to review it, while Sen. Specter continues to chase down videotapes of the Patriots stealing the Jets' signals.

Blogger Rick Karcher -- 3/02/2008 8:16 PM  


You're missing the point of my argument because the answer to your question is very simple--there's a clear distinction between mere factual information generated by players' accomplishments that's incorporated into newspapers, books, questions in games, board games, and fantasy leagues in comparison to products that embody the player's identity itself such as his name and number on a shirt (an example that does not include the player's image), trading cards, and perhaps bobble heads. Hopefully you'll have some answers to the questions I've raised in our dialogue by the time of the SLA conference.

Take care,


Anonymous Anonymous -- 3/03/2008 12:41 PM  


You're just reiterating the factual distinction between a trading card and a fantasy league game, which I obviously get. But I don't understand the legal significance of the distinction such that a trading card "should" lead to an entirely different outcome from fantasy leagues. I'm asking for the "why"; the justification. Is there more unjust enrichment with a trading card? Is there greater commercial exploitation with a trading card? And if fantasy leagues included mugshots, are you saying that would violate the right of publicity or not?

Secondly, I think your primary focus on the information being used (i.e. the names, images and stats), as opposed to how that information is being used, doesn't sufficiently address First Amendment considerations and also creates confusion in applying right of publicity law and First Amendment protection. The reason newspapers and books don't violate the right of publicity is because of "how" the information (names, images and stats) is being used, not because they contain facts in the public domain. The primary purpose of the book/newspaper is to inform, which is a legitimate First Amendment privilege. But if I take that same exact information from the newspaper or book and put it on a shirt and sell it, how that same information is being used has been transformed. Now, one could argue that the shirt still informs, but its primary purpose is obviously commercial. That's how I see fantasy leagues.

I think fantasy league use is even a more clear violation of the right of publicity than bobble heads, because there might be an argument that the creation of the player's bobble head image entails an expressive component protected by the First Amendment (i.e. Cardtoons and the Tiger Woods case).

Blogger Rick Karcher -- 3/03/2008 2:06 PM  

I just can’t help myself...

Prof. Mitten,

I’ve spent an inordinate amount of time over the last several months trying to see things your way, and I’m convinced that it just doesn’t work. With respect, here is why I think you are wrong:

1) I think Prof. Karcher is correct when he says that the fact that the players’ stats are in the public domain is IRRELEVANT to Right to Publicity analysis. Liability doesn’t turn on where the information came from, but how the information is used.

I understand your reasoning in using the Delaware Lottery and Motorola as support for your proposition, but I find it unconvincing. I see those cases as establishing that sporting event results themselves are not intellectual property that can be owned by one entity, but I don’t think they establish that they can be used in any way in disregard of another’s right.

To borrow from a colleague, it is clear that one can legally own and posses a screwdriver. But simply because one can own and posses it, there are restrictions on how it can be used. You can use it to fix your car, but you CAN’T use it to break into your neighbor’s car. Delaware Lottery and Motorola make it clear that anyone can posses the “screwdriver” that is professional sports results, but I do not think it follows that those cases establish that they can be used in any way that violates an independent right of another.

Consider the following under your rule of law: Jack Nicholson always wears sun glasses to the Academy Awards. Let’s say Ray-Bans. Entertainment mags and tv shows will publish pictures or video of him with the glasses and may even comment on the fact that he is wearing Ray-Bans. For all intensive purposes, the fact that he wore the glasses and perhaps even pictures of him in them are “in the public domain.” At least the fact that he wore them is. Under your rationale, Ray-Ban could go out the next day and put up billboards all over the country and publish ads that say “Jack Nicholson wears Ray-Bans. You should too.” I think (I hope) we’d agree that this would be a violation of his publicity rights. This would be purely factual info, and in the public domain. But even though this fact lies within the public domain, Ray-Ban does not have the right to disseminate it a way that infringes upon Nicholson’s rights, even though no one “owns” the fact that he wore the glasses.

So now you say, “yeah, but that’s an advertisement, this is different.” – Maybe, but the law in Missouri does not restrict liability to ONLY advertising cases. See the Rest. of Unfair Competition § 47 (which Missouri has adopted and thus governs the CBC case. See Doe v. TCI Cablevision 110 S.W.3d 363) In fact, it specifically says that implied endorsement is NOT a requirement under the Right to Publicity. As the 8th Circ said, fantasy sports don’t fall squarely within services or merchandise, but either way it is somewhere between the two and under the umbrella of 47. The legal analysis under the ID element does not change based on why type of use is at issue under the Purposes of Trade element. So I think my hypo would stand, and would produce irrational results if your Rule of Law regarding public domain was adopted.

Now, if you want to argue about the Right to Publicity SHOULD be, that’s a different argument. But under what the law IS (at least in Missouri), implied endorsement is not a required element.

2) You say: “Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities.” - - - “it is not selling a product whose essence is the player's identity.”

I can’t tell you how much discussion I’ve had over this idea, and how vehemently I refuse to accept it.

If fantasy sports is somehow NOT reliant on the identities (and fame) of the players, why not find some other array statistics? Why pursue a trial and two appeals to retain something merely incidental to the product? I bet there are high school teams all over the country who would love to have their stats be the basis of a fantasy league, and probably wouldn’t ask for a licensing fee. A package of stats would not be hard to obtain. Pro stats may be easy to find, and already pre-packaged, but surely the added cost, if any, of putting together the stats of a high school league is less expensive than the legal fees CBC is paying right now.

The fact is, nobody would play fantasy sports not based on pro athletes. That’s why they play them.

Step back and simply consider the rationale behind the Right to Publicity: To protect against the exploitation of the good will one has invested in achieving a status of marketable fame. The fame of the pro athletes MAKES fantasy products marketable, at a minimum it makes it more profitable than if they used high school players. Pro athletes have literally invested their entire lives in achieving this status and that status adds value to Fantasy Sports. Why shouldn’t the players get a piece of that value?

You say: “Rather, the "product" that is the essence of a fantasy game is a package of statistics based on players' performances, not the players' identities.” To me, that is like saying that the product at issue when one buys a Ralph Lauren shirt is just a collection threads weaved together. Technically speaking, it is. But when a consumer buys a polo shirt he is also buying the status of wearing the brand. He buys the reputation of durability and quality attached to the brand. He also buys the guarantee of company to make good on defects...the list goes on.

Technically speaking, f-sports leagues only use stats, just as a Polo shirt is technically a mere collection of threads. But to simplify “the essence” of f-sports as merely just a compilation of statistics ignores the connection that fantasy players seek to the games they watch by playing the game. To me, the athlete’s identities cannot be excluded from the equation when one tries to boil f-sports down to its essence. It is just too much a part of why f-players play the game and why they spend $1.5 billion a year on it. The player’s identities are intrinsically and inseparably tied to statistics and fantasy games themselves.

Now you might say, as you seem to above, “Yeah, but the players add value to the NY Times by reporting on them rather than the local pee-wee league. The players add value to ESPN...etc.” Do the players get to now control every publication of every box score or every highlight?

No. But literally speaking, the NYT and ESPN actually DO satisfy the elements of the Right to Publicity.
- They use the players ID’s
- Without their consent
- For the purposes of trade

Nobody files a claim against them because the First Amendment quite squarely protects this use, not because the elements of the tort haven’t been satisfied.

Now, if the debate is whether the 1st A should protect fantasy sports, I think the grounds are much more fertile for an argument, but that is a defense to be argued once the elements are satisfied. To me, there is big difference between selling a box score or a highlight and selling a game, but there is some credibility to the idea that is simply a new way disseminating news and entertainment etc... and is worthy of the same protection as traditional news/entertainment mediums.

If I'm missing the point of your argument, please tell me what I'm missing.

- Matt Greer

Anonymous Anonymous -- 3/03/2008 5:23 PM  


I knew neither of us could wait three months to continue this debate.

The degree of what you term "commercial exploitation" is wholly irrelevant to the issue of the protectable scope of publicity rights, although this seems to be your primary argument that fantasy leagues violate MLB players' publicity rights without their authorization (i.e., fantasy leagues generate $1.5 billion in revenues, therefore the players are entitled to their cut). But "unjust enrichment" alone doesn't violate the right of publicity.

Does this mean Barry Bonds should get a part of the revenues generated by the peanut vendor across the street from the ballpark because fans who purchased peanuts came to the game to watch him break Hank Aaron's HR record? No, because despite any perceived free riding on Bonds' efforts or unjust enrichment, there is no misappropriation of his identity.

I'm not advocating that a player's image must necessarily be used without authorization to violate his publicity rights. (If a fantasy game operator did use a photo of the player, it would be easier to establish that the operator was using a player's identity to promote its game.) However, other than situations in which his name is being used to advertise a product or in a manner that creates consumer confusion, there are relatively few instances in which mere usage of a player's name(and a fantasy league isn't one of them) constitutes an actionable misappropriation of his identity (name on a T-shirt or jersey is one example).

We seem to agree that how a player's name is being used has legal significance. I say that mere descriptive use of a player's name, especially when used merely to identify public domain facts, does not constitute misappropriation regardless of the medium in which such usage occurs. However, you want to draw a distinction between such usage by the news media and other commercial enterprises on the ground that the former's usage is informative and the later's is commercial. This position, however, is untenable. For example, in your article you concede that sports questions in Trivia Pursuit (a game, not a book or newspaper) do not violate the right of publicity of the players who are the subject of such questions. You then fall back on your degree of "commercial advantage" argument, which numerous courts (if not all) have rejected as the legal standard for distinguishing between infringement and non-infringement of publicity rights.

Moreover, even the unauthorized usage of one's image or likeness in a product sold by a commercial enterprise other than the media does not necessarily violate the right of publicity, so unauthorized usage by the media v non-media distinction isn't necessary controlling. See Kirby v Sega (Space Channel 5 video game doesn't violate professional singer's publicity rights). BTW-I do agree that a bobble head may be an artistic or expressive work that does not violate the subject's publicity rights.

In summary, I think how the player's name is being used (i.e., the context), not by whom or how much revenue such usage generates, is the best standard for delineating between exclusive rights that may be created by state publicity rights laws and information in the public domain that may be used by anyone even for commercial gain. At least we agree that there does need to be a uniform national standard.

Your turn at bat . . .


Anonymous Anonymous -- 3/03/2008 5:45 PM  

Matt Greer,

Thank you for joining the discussion.

In the spirited debate between Rick Karcher and me, the central points I'm making may be difficult to discern. In my forthcoming law review article I make the rather straightforward argument that merely descriptive use of a player's name to identify public domain information is both not misappropriation of one's publicity rights and is protected by the First Amendment. Even if some states, with Missouri being a prime example, broadly construe the right of publicity, national law should be uniform and not limit the public's right to incorporate purely factual information (e.g., baseball statistics)into collateral products and truthfully and accurately describe the source of such information.

I've read your post carefully, but none of your examples illustrate why my view is wrong and inconsistent with analogous precedent. Rather, you merely agree with Rick that the players should be paid simply because their well known exploits are the basis of a game. See my post immediately prior to this one that explains why this view inappropriately extends the right of publicity.


Anonymous Anonymous -- 3/03/2008 6:24 PM  

Matt, Matt, and Rick...

I've really enjoyed reading this thread, it's been nice to get some ROP reading again. And sidelined with a nagging cold I've finally gotten up to date on my Sports law blog.

As I have said on other threads on the forum, I am in Prof' Karchers corner on this one, CBC was not correctly decided, and I truly believe infusing copyright and trademark principles into the ROP transforms it into something that it is not.

The argument that the appropriation (for commercial gain) of a players identity is ok because it is "merely descriptive", and used to identify public domain information is a stretch.

the athlete as a celebrity, has a value in his/her identity (The CBC court acknowledged this but then dismissed the fact as courts often do, because atheltes make enough money anyways... personally, I have a fealing that the judges in CBC were tired of paying $150 for decent seats at the ballgame, but that neither here nor there...)

the scores/statistics of sporting events are fair game for newspapers (media in general) because it is newsworthy, thus it makes its way into the "public domain".

Fantasy leagues want to cash in on the sports stats market by creating a game using the statistics that have already been reported my the media as newsworthy, thus protected by the First Amendment.

So as a Fantasy League operator, how do I maximise my output? I put out the best product! I have the best graphics, best use of software functions, etc...

here's the problem, in order for the fantasy game to work, the stats must be connected to teams and players, but the players image is protected.

AHA! here's how to solve it... we use the players identity (not picture), but only to identify the stats...its a mere coincidense that I capitalize off of others blood, sweat, and tears...

Why should the fantasy leagues get away with this? the scores/stats is the part thats protected by the first amendment, but the IDENTITIES of the players is what create the the superior fantasy product.

STL Cardinals, 1b, #5....that is merely descriptive...but who would use that fantasy league when you can use the other one where you can trade for Albert Pujols? The fantasy leagues want the most attractive product without paying for it, plain and simple...

Blogger Jimmy H -- 3/03/2008 7:17 PM  

I have thoroughly enjoyed this thread so far, but I feel compelled to throw in my two cents. I must agree that CBC was decided incorrectly, although 8th circuit got the tort right the second time around. Prof. Mitten, you make a very interesting argument from a macro level, but I don't agree that the right of publicity can be analyzed in the same manner as Lanham Act or Copyright law. From a comparative standpoint, it is interesting to see how the statistics have been analyzed under these similar, yet distinct, causes of action. With that being said, these are distinct causes of action, with different elements, and as such, I don't think they can all be treated the same.
As a student, I am surely no expert in any of these areas of law, and I have not engaged in the vast amount of research that some of the others posting have; but I think the players have a legitimate cause of action.
In regards to the right of publicity, it seems that the state is simply providing a type of property right in the players' identities, just as the state provides rights and guidelines for its citizens’ to own real property. Moreover, there is no doubt in my mind that the three elements are satisfied because there is obviously a use of the players’ identities, without consent, for purposes of trade. I don't see any way around the tort itself.
Mr. Greer is right, First Amendment aside, even newspapers satisfy what is required under the elements of the right of publicity, but a newspaper is clearly protected under the First Amendment. The First Amendment seems to be the most logical place to attack the MLBPA's case. The First Amendment does provide protection for expressive works, including entertainment. To me, the entertainment exemption would be the most logical place to attack the Right of Publicity cause of action in the fantasy sports context. However, I still think that the First Amendment does not provide a basis for eliminating or superseding the player's cause of action.
It goes without saying that the First Amendment is a powerful doctrine, however it is not limitless. One of its limits seems to be when another's property rights are infringed. For example, a person may burn his flag and be protected under freedom of expression all day long. But a person cannot go next door, and burn the flag of his neighbor and claim to be protected under freedom of expression because it now infringes upon another's property rights. Similarly, a person may use many different mediums for expressing his idea (write an editorial, stand on a soap box, etc). But that same person cannot forward the same message by spray painting it on the side of a downtown building because it infringes on another's property rights. Therefore, I also believe the focus must be on HOW the information is used and not what the information is or where it can be found. (I like the screwdriver analogy by the way).
To sum up my argument:
(1) The right of publicity creates a property right,(similar to that of other real and intellectual property rights), and
(2) The First Amendment does not go so far as to allow others to infringe upon that property right.
Now perhaps I am over-simplifying (or overcomplicating) the analysis, but that is how I understand it. Nevertheless, I really would like to see the Supreme Court grant certiorari because a workable standard is needed to clean up all of the inconsistent holdings.

Blogger Adam M. -- 3/03/2008 8:45 PM  

Nothing's preventing the players from earning money from fantasy league games--all they have to do is start up their own games or officially license others to do so. In addition, they're free to use their own statistics as well as those of their predecessors and successors to create new products and reap the rewards. But the players should not have a state-created monopoly masquerading as "a right of publicity on steroids" that enables them to extract royalties (or, alternatively, to prevent the existence of fantasy leagues or the creation of other new products) without legal or economic justification. Fortunately, all four judges considering this issue have looked behind the mask and seen the light. I'm merely attempting to explain what they saw and how it's consistent with the way other federal courts have applied copyright, trademark, and state misappropriation law to analogous facts.



Anonymous Anonymous -- 3/04/2008 12:15 AM  

No...I get your argument, but I’m not sure you get mine...

You summarize your argument as follows: “merely descriptive use of a player's name to identify public domain information is both not misappropriation of one's publicity rights and is protected by the First Amendment.”

I see this as flawed for two reasons. First, this proposed rule of law does not fit with existing R2P precedent and leads to irrational results when applied. Second, it implies that the use in fantasy sports can be fairly characterized as “merely descriptive use of a player's name to identify public domain information.” It strikes me as disingenuous to characterize the use of players’ identities in fantasy sports in these terms.

As to my examples. Each shows why your view is, (again, with respect) unconvincing. Each fits squarely within my two main points listed above. You’ve seemed to dismiss them, but you don’t say why.

1) The Nicholson glasses is parallel to Abdual-Jabar. From the case: “While Lew Alcindor’s basketball record may be “newsworthy,” its use is not automatically privileged. GMC used the information in the context of an automobile ad, not in a news or sports account.”

It seems like your rule of law would precipitate a different result because the info is public domain. Does the fact that its advertising change the result? I see this as MORE convoluted and MORE difficult to achieve uniformity and a workable standard. (which are your stated goals) So there is a carving out of the R2P an exception for public domain facts, but this doesn’t apply if the use is an advertisement? Or is the R2P only to apply to uses in advertising? That would be a significant departure from the existing law and would dramatically narrow the rights of those the R2P protects. This picture is getting hazier rather than clearer.

2) The Polo shirts – All I meant by this was to factually analogize how your characterization of what and how the statistics are used in f-sports simplifies the significance of the players identities to a level that serves the ends of your argument, but does not fairly characterize reality and the relationship between the athletes’ ID and the game. I feel that saying the players names are just the identifying tags to the statistics and is akin to saying that a polo shirt is just a pile of thread and no more.

3) Your Barry Bonds peanuts analogy is badly missing the point. What you’ve come with, while it might dove-tail with the underlying rationale behind the R2P, in no way whatsoever satisfies the elements of the R2P, and nobody would argue that it does. Unjust enrichment is merely the underlying rationale that the right to publicly seeks to protect and in no way do I (nor I think Prof. Karcher as well) advocate that it plays any role in establishing liability under the tort. (Except as a measure of the amount of recovery.) Nobody here would even dream that there would be liability for the peanut vendor. What I think is being said is NOT that this concept of unjust enrichment legally mandates a finding for the players, but merely that purposes behind the R2P will be served by finding for the players.

- Matt Greer

Anonymous Anonymous -- 3/04/2008 12:57 AM  


This is definitely going to be my final at bat, and then you can have yours.

You and I have read the cases, and it's clear to me that your understanding of the right of publicity and interpretation of the cases is different from mine. But you have made a couple of comments indicating you think that, because I played professionally, I just want players to "get their cut". Let me clarify that I don't care how much players make! How much they make is not for me, you nor any judge to decide. So I think it's egregious when judges write in their opinions that "players are already handsomely compensated" because it evidences that the outcome of the case is being influenced by their personal views regarding how much players "deserve to be compensated."

Second, you still haven't answered my one simple question. While you've stated that use of a photo by fantasy leagues would make it "easier" to establish the identity element, you haven't definitively stated whether, in your view, it changes the outcome (meaning who wins the case). If you think including a photo does not change the outcome, there would be no justification for the inconsistent treatment of trading cards and fantasy leagues. If you think including a photo does change the outcome, then I would like to know "why" it does --i.e. the underlying justification or rationale for the inconsistent treatment of trading cards and fantasy leagues.

Finally, let me tell you what I believe if the Supreme Court takes the case. I believe it would not view the application of the First Amendment to right of publicity claims as broadly as the Eighth Circuit did. I believe the Court would view the Eighth Circuit's ruling as not providing any clear guidance in evaluating legitimate First Amendment considerations. I believe the Court would see that a strict application of the Eighth Circuit's standard would effectively preclude all right of publicity claims [this sounds like a line from Bull Durham], and more importantly, that the Eighth Circuit's standard is inconsistent with well-established precedent that the First Amendment (as applied to right of publicity claims) is and should be narrowly confined to protecting uses the "primary purpose" of which is to inform (which includes such uses as news reporting, magazines, books, etc.) as well as uses that contain expressive forms of speech like movies, paintings, parodies, etc. And I also believe the Court would not view that standard as difficult to apply. The standard is not defining what's "newsworthy" which is impossible to define and focuses on the information (which is essentially what the Eighth Circuit's standard does). The standard is defining the primary purpose, which focuses on how the defendant is using it and can adequately distinguish legitimate and illegitimate uses under the First Amendment.

Blogger Rick Karcher -- 3/04/2008 7:10 AM  

This is my last post because I have to attend to my full-time job. I think blogging's great and a lot of fun, but rarely find time to engage in it.


Despite our disagreement regarding the proper scope of the right of publicity and limits imposed by the First Amendment, I agree with you that how much money the players already make in salary and endorsement income is irrelevant to this analysis. However, the economic incentives or disincentives(from the players' perspective) created by the judicially construed scope of this right, as well as the corresponding economic effects on producers of goods and the public, certainly are relevant.

Because C.B.C.'s holding is consistent with the economic rationale of Zacchini, I doubt the Supreme Court will grant cert. It refused to do so in Tony Twist and Motorola cases, and there's no clear split of authority among the circuit courts. Even though it appears there's a fair amount of money at stake, I think C.B.C. involves a rather unique set of facts specific to pro baseball and football,and that the Court won't choose this case to define how the First Amendment limits state right of publicity laws. The aspect of the case that has the most far reaching implications is the Eighth Circuit's holding regarding the breach of contract/licensee estoppel issue, which may not present a substantial federal question.

I never said (or meant to suggest)that including player photos as part of a fantasy game operator's website necessarily means there's any misappropriation of player identities (See Gionfriddo), although it may violate the copyright owner's rights in the photo or, depending on how it's used, may create liability for false endorsement. My understanding is that one plays a fantasy game because he hopes to choose the best set of player performances based on their statistics (which no one owns) rather than to merely possess a tangible product embodying the player's identity such as his unembellished photo on a trading card or name and number on a jersey. To me, this is a clear factual distinction that justifies a different legal result. But I understand that you disagree.

Matt Greer--

Please tell me who you and something about your background because, although you seem to know me, I don't know you.

First, please identify the "existing R2P precedent" that you assert is inconsistent with my argument. Obviously, C.B.C. is squarely on point, and the closest case factually is Delaware Lottery, which involves a state misappropriation claim that is the right of publicity's older brother.

Second, rest assured that I understand your argument, but your examples don't support the point you're trying to make. A screw driver, an item of personal property owned by someone, which thereby provides her with certain exclusive rights, is very different from factual information in the public example. Thus, it is not an apt illustration and doesn't prove anything.

Your Jack Nicholson sun glasses example is an example of the unauthorized use of a celebrity's name in advertising, which I agree is similar to the Abdul Jabbar case. As stated in one of my earlier posts, this is an example of when the use of public domain information about an athlete does violate the right of publicity. But the facts in C.B.C. are different from those in Abdul Jabbar; the fantasy game operator is not using MLB players' names to advertise or promote its game!

Finally, I'm puzzled by what your shirt example proves and how its relevant and material to the issue Rick and I are debating. Again, a shirt is an item of personal property and someone owns it (presumably the Ralph Lauren company at the time of manufacturer). But so what? Anyone, including the store selling it, can describe it as a Ralph Lauren shirt even if it is a gray good (i.e., manufactured by Ralph Lauren but acquired through unauthorized distribution channels). Another manufacturer can even describe its own shirts as being similar in style or quality to a "Ralph Lauren shirt" without violating his right of publicity.

Anyway, I've enjoyed our debate, which will no doubt resume if the Supreme Court grants cert.


Anonymous Anonymous -- 3/04/2008 4:26 PM  

I too have enjoyed this debate, and I think it has run its course.

I only want to clarify what I meant by the shirt thing:

The analogy is meant to have no legal significance whatsoever, and you’re reading more into this than what I meant by it. All I meant was this:

For one to say that a polo shirt is just a pile of thread is disingenuous and too simplistic for what the shirt really is.

I find the way you characterize the use of athletes’ names in f leagues equally as disingenuous and as overly simplistic as the above statement.

The comparison was intended to carry no legal significance.

I’ve no doubt you disagree, and I really don’t have an interest in further discussion. I think we’re at the agree to disagree point. It just seemed like you were reading more into the shirt thing than I really meant by it, and I just wanted to clarify the confusion.

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