America’s Favorite Pastime: Adding up the Stats for a Fantasy Success

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America’s
Favorite Pastime: Adding up the Stats for a Fantasy Success

 

Introduction

 
As pitchers prepare to report to training
camp, America’s favorite pastime is gearing up for the 2010 season.  While players begin competing and vying for a
coveted spot on the team roster, many Americans participating in fantasy
baseball leagues are preparing to draft their own “dream team.”  Each year fantasy baseball leagues gain more
attention and participation, with an average of 29.9 million active users
spending over $800 million dollars directly on fantasy sports products as well
as $3 billion of sporting goods. [1] Within this lucrative field, the Major
League Baseball Association (“MLB”) as well as the Major League Baseball
Players Association (“MLBPA”) worry that the financial success of the fantasy
sports industry may hinder potential revenue possibilities.  Through the use of professional baseball
players’ performance statisics to determine the overall success of the fantasy
teams, issues of copyright infringement as well as violation of the right to
publicity arise, resulting in lawsuits against licensing deals and the overall
leagues. Although professional athletes claim to have a right of publicity in
their name as well as performance statistics, fantasy baseball leagues should
continue as is because performance statistics are not copyrightable under the
Federal Copyright Act and litigation in this matter would far exceed the
benefits received by the MLB.

            This article will examine the contractual
obligations of fantasy sports leagues to the MLB, copyrightable material and
how performance statistics do not fall under such a category, and how the right
to publicity has been trumped by First Amendment rights by cases such as C.B.C.
Distribution and Marketing, Inc. v. Major League Advanced Media, L.P.
as well as statutory interpretation. 

 

Background

  With an impact of $4.48 billion in 2008,
fantasy sports leagues have revolutionized the way individuals experience the
game. [2] Although fantasy sports are not a new phenomenon, it now proves
easier and less costly for individuals to follow on the internet rather than
through newspapers and other periodicals, creating a greater following through increased
access. [3]   To participate in fantasy
league sports, individuals create teams and compete against one another by
maintaining rosters of actual professional athletes and use players’ real game
statistics to score points. [4] These statistics are gathered and input into
online databases, leading to the ultimate question of who owns them and how the
rights to any profits such statistics produce. [5]

As the success and popularity of fantasy
sports grew throughout the 1990s and early 2000s, the question of whether or
not fantasy league operators were required to obtain licenses for the right to
use athlete names and statistics became the subject of significant dispute. [6]
Although fantasy providers must obtain licensing from the professional team
organizations for any use of protected marks, such as team names and logos, the
notion of fair use and statistics still drifted with uncertainty. [7] To combat
this confusion, a groundbreaking 8th Circuit case brought this issue
to the forefront of the public eye.  In C.B.C.
Distribution and Marketing, Inc. v. Major League Advanced Media, L.P., (“CBC”)
one
online fantasy sports provider challenged this issue, considering whether ownership
over professional performance statistics was possible. [8]  The majority opinion held that the First
Amendment trumped Major League Baseball Player’s right to publicity and allowed
licensing of statistics for use in online fantasy sports. [9]  Since this case’s holding, the professional
baseball players as well as the MLB have come to terms with the fact that their
statistics are found within the public domain, unable to be protected by
copyright, and the licensing First Amendment agreements overcome any right to
publicity arguments regarding the legality of the league. [10]

Analysis

 
Despite the fact that the earliest
fantasy leagues were unlicensed, by the mid-2000s a bifurcated industry
developed in which the larger, more established fantasy leagues were licensed and
paid royalties whereas the smaller companies operated unlicensed games. [11] Through
the balance of the competing interests of MLB players, including their rights
of publicity against the public interest as well as statistical ownership, the CBC holding demonstrated that statistics
are within the realm of public domain and a prima
facie
right to publicity does not exist in such leagues. [12]  Although CBC
was merely a fantasy league case based on professional baseball, subsequent
cases such as CBS Interactive v. National
Football League Players’ Association
, upheld the CBC standard, noting the lack of differences between fantasy
football and fantasy baseball in terms of statistical ownership and publicity
rights. [13] 

Under court analysis, there is no valid
copyright ability in facts. [14]  In
baseball, these facts come in the form of statistics, including: home runs, runs
batted in, steals, and wins by pitchers. [15] A sports statistic by itself is a
fact; there exists no author because the player causing the event to occur
through the action of “hitting a baseball can no more claim ownership over that
event than a driver could claim ownership over a report of her automobile
accident.” [16] Furthermore, these statistics are readily available in the
public domain and like all First Amendment issues, the right of information
within the public domain is accessible by all. [17]  Because these statistics are facts and
readily available, they lack originality vital to its copyright potential along
with fixation. [18]  A copyright grant
has traditionally been viewed as an incentive to encourage new works by
assuring authors that they will reap the benefits of their intellectual labor,
however, no originality to produce a copyrightable idea is available and no
incentive to reproduce this statistic exists. 
[19]  The reproduction incentive
does not apply to professional sports statistics, because as a compilation
created through the collection and assembling of preexisting materials or of
data, the facts are merely arranged in no manner resembling a new or original
product. [20]  Furthermore, the
originality in the arrangement of facts is essentially a non-factor for online
fantasy sports providers because fantasy sports databases allow their customers
to search every statistic contained in the database in any order and fashion as
that user pleases. [21]

In conjunction with the MLBA’s copyright
argument against CBC, a right of
publicity claim also served at the forefront of the opinion.  The right of publicity centers around “one
who appropriates the commercial value of a person’s identity by using without
consent the person’s name, likeness, or the other indicia of identity for the
purpose of trade.” [22]  This right is
recognized under the common law of eighteen states and of those eighteen, eight
have statutory counter-parts that are broad enough to encompass the common law
right of publicity.  [23]  In determination of the right to publicity in
fantasy sports leagues, the district court in CBC explained that “use of athlete information does not give them
something free which it would otherwise be required to pay; players’ records
are readily available in the public domain.” [24] Therefore, since the public
can look up these statistics free of charge within the public domain and the
supplier of such information does not make a profit from listing these numbers,
the players are not missing out on a chance to make revenue and therefore not
within the publicity right. 

 

Recommendations

        After the
holding in CBC, it is evident that a professional
athlete has no ownership over his performance and the right to professional
sports statistics is held within the public domain.  Litigation over the licensing and the right
of publicity within the fantasy sports league industry would prove ineffective
and overall costly to the parties involved. Overall, the average MLB player’s
career is 5.6 years, one in five of all position players play only a single
season in the majors, while less than half of the players remain in the league
long enough to play five seasons. [25] Furthermore,
the CBC court concluded that professional
baseball players are so well rewarded that the elimination of revenue from
fantasy league licensing fees would have virtually zero impact on the players’
ability to enjoy the fruits of their labor. [26] Hence, the players remaining
in the league long enough to build up their statistical background for the
sports industry league would reap little to no benefits from litigation
matters.  Therefore, the fantasy league
industry should remain as is and allow the individuals involved to enjoy
America’s Favorite Pastime should be left to its entertainment value. 

 

Conclusion

         The world of sports entertainment
has taken on a myriad of changes since the introduction of the internet.  Some of these changes come from the ability
to follow favorite teams through their websites to watching sporting events in
real time, and finally the ability to track fantasy sports leagues with great
ease.  Through the use of fantasy sport
leagues online, professional associations of players as well as of the sports
themselves, questions as to ownership of certain rights arose.  With the court holding that professional
statistics are not copyrightable and exist within the public domain, fantasy
leagues can continue to utilize such information as well as maintain their
licenses to continue the success of a phenomenon that has flourished over the
past few decades.  The internet has
alleviated much of the stress of finding information and condensing it into a compatible
medium.  Therefore its use has
tremendously helped the worlds of sports entertainment to continue its
steadfast grip and fascination of the population.

 

 

 

 

[1] Fordham Intellectual Property Media & Entertainment Law Blog, http://iplj.net/blog/archives/354 (last visited Feb. 8, 2010); Fantasy Sports Trade Association, http://www.fsta.org/ (last visited Feb. 10, 2010). 

[2] Fordham Intellectual Property Media & Entertainment Law Blog; Matthew G. Marrari, When Fantasy Meets Reality: The Clash Between On-Line Fantasy Sports Providers and Intellectual Property Rights, 19 Harvard Journal of Law & Technology 443, 452 (2006). 

[3] 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. 585, 561 (2006-2007).

[4] Michael J. McSherry, The Right of Publicity and Fantasy Sports: Should Professional Athletes Wield Control Over Their Identities or Yield to the First Amendment?, available at http://www.kentlaw.edu/perritt/courses/seminar/papers%202009%20fall/mike%20mcsherry%20-%20final%20-%20The%20Right%20of%20Publicity%20and%20Fantasy%20Sports.pdf (last visited Feb. 8, 2010); Matthew G. Marrari, When Fantasy Meets Reality: The Clash Between On-Line Fantasy Sports Providers and Intellectual Property Rights, 444.

 [5] Brandon T. Moonier, Legal Game behind Fantasy Sports: Copyright Protection and the Right of Publicity in Professional Performance Statistics, 26 St. Louis U. Pub. L. Rev. 129, 130(2007). 

[6] Scott Hervey, Fantasy Sports League Hits It Out of the Park in Challenging MLB's Ownership Of Player Statistics, Nov. 23, 2007, available at http://www.theiplawblog.com/archives/-trademark-law-fantasy-sports-league-hits-it-out-of-the-park-in-challenging-mlbs-ownership-of-player-statistics.html.

[7] Matthew G. Marrari, 446.

[8] Id.

[9] Fordham Intellectual Property Media & Entertainment Law Blog; C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 (8th Cir. 2007). 

[10] Fordham Intellectual Property Media & Entertainment Law Blog

[11] Michael J. McSherry, The Right of Publicity and Fantasy Sports: Should Professional Athletes Wield Control Over Their Identities or Yield to the First Amendment?.

[12] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 at 823. 

[13] CBS Interactive v. National Football League Players’ Association, 2009 WL 1151982 (D. Minn. Apr. 28, 2009).

[14] Feist Publications, Inc. v.  Rural Telephone Service Co., 499 U.S. 340 (1991).

[15] Brandon T. Moonier, Legal Game behind Fantasy Sports: Copyright Protection and the Right of Publicity in Professional Performance Statistics, 137. 

[16] Matthew G. Marrari, 447-8.

[17] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 825. 

[18] Copyright Act, 17 U.S.C. § 102(a)(2000).

[19] Brandon T. Moonier, 134. 

[20] Id. at 133.

[21] Id. at 137. 

[22] Restatement Third of Unfair Competition § 46.

[23] Brandon T. Moonier, 141. 

[24] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 824.

[25] Fordham Intellectual Property Media & Entertainment Law Blog

[26] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 825.

 

 

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