Fantasy Baseball, Publicity Rights and the First Amendment
[Editor's Note: Following is a guest post by Katherine Hendricks, a partner at Hendricks & Lewis.]
With the Supreme Court's denial of the petition for a writ of certiorari in June 2008, the Eighth Circuit's opinion in perhaps the most-watched right of publicity case in 2007 in C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., will stand.
Fantasy sports operator, C.B.C. Distribution and Marketing, Inc. ("C.B.C."), brought a declaratory judgment action against the Internet arm of Major League Baseball, Major League Baseball Advanced Media, L.P. ("Advanced Media") to establish C.B.C.'s right to use--without license--major league baseball players' names and performance statistics in fantasy baseball.
In fantasy baseball, participants form fantasy teams by "drafting" players from major league teams before the season begins each spring. Participants compete against other fantasy baseball "owners" who have put together their own teams. Participants' success and that of their fantasy teams depend on the performance of the individual players on their actual teams during the major league season. Participants pay fees to play and additional fees to trade players during the season. (According to the Fantasy Sports Trade Association, the fantasy sports business is a $1.5 billion industry with 19.4 million players in the United States and Canada. Bob Van Voris and Jeff St. Onge, Fantasy Sports Win Right to Player Names, Statistics (Update 5), bloomberg.com, October 16, 2007.)
From July 1995 through December 2004, C.B.C. had a license from the Major League Baseball Players Association ("MLBPA") to use the names, nicknames, likenesses, signatures, pictures, playing records and biographical data of each player as well as the logo, name and symbol of the MLBPA. The license expired and was not successfully renegotiated with Advanced Media, the entity that had acquired all of the players' rights. Fearful that Advanced Media would sue C.B.C. for continuing to operate its fantasy sports games without a license, C.B.C. sought declaratory relief in the Eastern District of Missouri.
The district court granted summary judgment to C.B.C., holding that it was not infringing any state-law rights of publicity but that even if publicity rights were implicated, the First Amendment trumped those rights. The district court also addressed the question whether the players' rights of publicity claims would be preempted by copyright law, finding that the players' records were mere facts which did not involve the sine qua non of copyright: originality. Because the players' names and playing records were not copyrightable, copyright preemption did not apply.
The Eighth Circuit concluded that the identities of major league players were being used for commercial advantage without their consent and thus, that they made out a cause of action for violation of their rights of publicity. Nonetheless, these rights were outweighed by the First Amendment. Because the court held that C.B.C.'s First Amendment rights in offering fantasy baseball products superseded players' rights of publicity, it did not reach the copyright preemption issue.
Weighing rights of publicity against First Amendment considerations is nothing new. See, e.g., Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Usually, courts conduct a fact-specific balancing test that compares the competing interest of the person's right of publicity with the public's right to be informed. The outcome typically depends upon where the use falls on the continuum ranging form "news" (e.g., current events and political commentary) and "public interest" (e.g., fiction or satire), to "commercial speech" (like advertising). See, e.g., Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996) (a set of collectible trading cards with parody cartoons of major league baseball players accompanied by humorous text); Elvis Presley Enterprises, Inc. v. Capece, 950 F. Supp. 783 (S.D. Tex. 1996) (use of the trade name "The Velvet Elvis" by a nightclub, and its selling of frozen drinks called "Love Me Blenders" and a food item named "Your Football Hound Dog"); New Kids On The Block v. News America Pub. Inc., 745 F. Supp. 1540 (C.D. Cal. 1990), aff'd, 971 F.2d 302 (9th Cir. 1992) (the use by a newspaper and magazine of the "New Kids On The Block" trademark in connection with a "900-number" phone service to conduct polls regarding readers' favorite and "sexiest" members of the musical group).
The Eighth Circuit concluded that C.B.C.'s fantasy sports use falls within the "public interest" portion of that continuum. Because baseball is "the national pastime" and the public has an "enduring fascination" with baseball's records and statistics, that data is due "substantial constitutional protection." But perhaps more importantly, the information in question is "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."
Although the court agreed the players' "identities are being used for commercial advantage," it concluded that the interests fulfilled by a right of publicity (namely, the right of an individual to reap the rewards of his or her endeavors and to earn a living) are "barely" implicated because major league baseball players are already "handsomely" rewarded and also have the opportunity to earn additional large sums from endorsements and sponsorships.
While one might initially and reasonably conclude that publicity rights are outweighed by the First Amendment, the rationale that rights of publicity are "barely" implicated if the holders of those rights already make lots of money is of little use as a general principle within the context of adjudicating publicity rights because those rights are generally most important to celebrities with real star power who more often than not find themselves "handsomely rewarded" for their endeavors. It might have been preferable to conclude that the public's constitutional free speech interest in using publicly-available facts outweighs any player's individual monetary interest.
