I. Introduction
In fantasy sports leagues, fans draft current major
league players to create their own imaginary roster, with the success of each
team hinging on how each player performs throughout the season.[1] Internet sites such as Yahoo! and ESPN pay
several million dollars for the right to operate fantasy leagues.[2] Major
League Baseball (“MLB”), and St. Louis-based CBC Distribution and Marketing
Inc. (“CBC”) have been entangled in a legal dispute over whether MLB players’
names may be used in fantasy baseball leagues.[3] This dispute is noteworthy because the
fantasy sports industry generates over $1.5 billion dollars annually.[4] Should MLB prevail, they will hold exclusive
rights to players’ names and statistics and may withhold such, likely causing
fantasy baseball to be much less appealing to fans.[5]
II. Background
On August 8, 2006, a federal judge granted summary judgment to CBC and
denied summary judgment for MLB, stating that the baseball players’ right of
publicity was not violated when their names were used for fantasy baseball
purposes.[6] CBC successfully argued
that the players’ names, which are used for free when published in newspaper
box scores, are part of the public domain and may therefore be used by anyone.[7] The court also stated that even if the right
to publicity was found to be valid, the First Amendment takes precedence over
this right.[8] Additionally, the court
found that federal copyright law did not apply to this case because players’
names and records are not copyrightable material.[9] The court’s ruling allowed CBC and other
companies that operate in the fantasy league industry to continue using
professional athletes’ names and records.
III. Legal Issue
MLB has recently filed a writ of certiorari with the United States
Supreme Court, calling for review of the CBC case and seeking a uniform
standard for right of publicity cases.[10] MLB claims that the Eighth Circuit did not utilize the proper test in
balancing publicity rights against First Amendment rights.[11] The proper test under state law, according to
MLB, would have been to invoke the “predominant purpose” test. The "predominant purpose" test
balances the artistic purpose of the use of the celebrity's
identity against the commercial purpose. If the commercial purpose
prevails then there is no First Amendment shield.[12] MLB further argues, had this test been used,
the players’ publicity rights would have been upheld.[13] MLB’s counsel asks the Supreme Court to determine
the proper standard applicable to the facts at hand, stating that six separate
tests have been established by state and federal courts.[14]
Professor Rick Karcher proposes that in publicity claim cases, a
“commercial advantage spectrum” should be utilized.[15] This spectrum
would have on one end “non-commercial”
purposes, wherein a defendant does not seek any commercial gain as a
primary
purpose of their use of an individual’s identity. The other end of the
spectrum consists of the
“commercial” end, which focuses on using the individual’s identity for
commercial gain.[16] The problem in
right of publicity cases arises when the use of information lies
somewhere in
the middle of this spectrum, according to Karcher.[17] Professor
Karcher describes this region of
the spectrum as “quasi-commercial,” containing the likes of sports
trading
cards and fantasy sports leagues.[18] The proposed fix advocated by
Karcher entails a two part inquiry. Firstly, one must inquire if the
use of name
or likeness of the individual ventures beyond news reporting,
entertainment or
literary purposes? If so, the next
step is to determine if the service or use provided would suffer significantly
if the identity or likeness was not used, and to what extent?[19] The test proposed by Karcher would seem to
protect individuals whose celebrity is relied on exclusively to turn a profit,
but would allow newspapers and other media reporting services to continue to
use players’ statistics and identities without having to pay royalties.
IV. Conclusion
The Supreme Court has not yet granted certiorari to hear the issue of
right of publicity on this matter, it may be in the Court’s interest to do
so. Hearing the case could perhaps
create a uniform standard by which publicity rights cases in the arena of
sports law may be decided. As previously
mentioned, fantasy sports leagues are growing in popularity and profitability,
this factor could also induce the court to rule on the matter.
Sources:
1.
Christopher Leonard, MLB Takes Fantasy
League to Court, ABC News, Jun. 14, 2007, http://abcnews.go.com/Technology/wireStory?id=3279250.
2.
Id.
3.
Id.
4.
Id.
5.
Id.
6.
Nate Ravitz, CDM Wins Lawsuit with MLBAM,
RotoTimes.com, Aug. 8, 2006, http://www.rototimes.com/article.php?article_id=2266.
7.
Id.
8.
C.B.C. Distribution and Marketing, Inc. v. Major
League Baseball Advanced Media, L.P., 443 F. Supp.2d.
1077 (E.D. Mo. 2006).
9. Id.
10. Richard T. Karcher, Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy
League Ruling, Sports Law Blog, Feb.
28, 2008, http://sports-law.blogspot.com/2008_02_01_archive.html.
11. Donna Walter, A pitch for judicial review: Will the Supreme
Court swing? BNET, Mar. 1,
2008, http://findarticles.com/p/articles/mi_qn4185/is_20080301/ai_n24370903.
12. Michael Kahn, Fantasy Baseball 2,
Real Baseball 0, Owners, Borrowers
& Thieves 2.0, Oct. 16, 2007, http://iplitigator.huschblackwell.com/2007/10/articles/fair-use/fantasy-baseball-2-real-baseball-zero/.
13.
Karcher, supra note 10.
14.
Id.
15.
Richard T. Karcher, The Use of Players'
Identities in Fantasy Sports Leagues: Developing Workable Standards for Right
of Publicity Claims, 111 Penn St. L. Rev. 557 (2007).
16.
Id.
17.
Karcher, supra note 13.
18.
Id.
19. Karcher, supra
note 15.