First Amendment Trumps Right of Publicity in Fantasy Baseball Case
The Eighth Circuit issued its much anticipated opinion in a dispute regarding the use of professional baseball statistics in fantasy games. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., No. 06-3357/3358 (10/16/07). This was an important case, with amici briefs filed by the NFL, NBA, NHL, NASCAR, PGA and WNBA. The district court opinion was previously posted here (1/18/07).
CBC operates a fantasy baseball game using Major League Baseball players' names and statistics. In previous years, CBC licensed the names and statistics from the Major League Baseball Players Association. This dispute arose when MLBPA refused to renew the license but CBC continued to use the names and statistics in its games. The MLBPA brought claims under the Missouri right of publicity statute. The district court concluded that CBC did not violate the statute, that first amendment concerns trumped the statute, and that the statute was not preempted by the Copyright Act.
The Eighth Circuit affirmed on first amendment grounds. The right of publicity statute at issue only requires (1) the defendant use the plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage. The court held that CBC's use of the players' names and statistics satisfied these elements. However, state law rights of publicity must be balanced against first amendment considerations. Zacchini v. Scripps-Howard Broad., 433 U.S. 562 (1977).
Discussed more after the break, the court found that first amendment concerns trump the right of publicity statute. This determination made the preemption issue moot, and the court declined to address preemption.
Protectable Speech
First the court determined that CBC's use of the names and statistics was protectable speech. The court noted it had recently found pictures, graphics and sounds in video games to be protectable speech. See Interactive Digital Software Ass'n v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir. 2003). CBC uses the names and statistics in an interactive form with a fantasy baseball game, and the same analysis applies.
First Amendment Concerns
The court identified four first amendment concerns that trumped the right of publicity statute. First, the names and statistics are 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." Second, information about baseball has a high level of public value. The public is fascinated with records and baseball statistics. Third, the facts of this case do not implicate the interests typically sought to be protected by right of publicity statutes.
