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Footloose and Fantasy Free

TheOldMole Jun 05 2008 08:57 AM

NY Times: Imagine having to swipe your credit card to debate whether Justin Verlander or Rich Harden has the better fastball? Or flip cards with a pal on the sidewalk? Or endure another of Grandpa’s stories about the glory days of the Brooklyn Dodgers? Sensing a way to make even more money than it already does, Major League Baseball has tried to force people to start paying for their fandom by imposing licensing fees on “fantasy” baseball leagues to use major league players’ names and statistics. Happily for fans and free speech, Major League Baseball was tossed out of the game this week in the Supreme Court. In fantasy baseball, fans manage imaginary teams made up of actual baseball players. Success depends on how real-life players perform in actual games. Fantasy sports have become big business. Some big leagues run by large companies pay Major League Baseball licensing fees. Other leagues do not. Major League Baseball sued one of the companies that did not, the St. Louis-based CBC Distribution and Marketing. The suit, which had the support of the National Basketball Association and the National Football League, claimed fantasy baseball is an infringement on intellectual property. CBC said that it had a First Amendment right to use the players’ names and statistics. The St. Louis-based United States Court of Appeals for the Eighth Circuit ruled for CBC. Any claims that the company violated the league’s right of publicity, the court said, were trumped by the First Amendment. Reciting and discussing information about Major League Baseball is speech of “substantial public interest,” the court said. This week, the Supreme Court turned down Major League Baseball’s appeal of that decision. In doing so, the court was not saying anything about the merits of the case; it turns down cases for many reasons. The effect, though, is to leave in place an important pro-free-speech ruling. In recent years, corporations have been aggressively pushing the bounds of intellectual property — extending the length of copyrights to unreasonable lengths, for example, and patenting seeds. In the case of fantasy baseball, the courts have rightly cried foul. The biggest fantasy in this case was Major League Baseball’s claim that its fans should pay to talk about the game.

Vic Sage Jun 05 2008 10:26 AM

]The biggest fantasy in this case was Major League Baseball’s claim that its fans should pay to talk about the game . wow. there's some fair and balanced reporting. I don't think MLB is claiming fans should pay to talk about the game. I do think they are claiming that unlicensed 3rd parties are using the names of MLB players to make a buck, and therefore MLB (to the extent they are authorized to license such uses of MLB player names, images, etc) wants their cut. of course facts are not copyrightable. Just like phone books are collections of data and are not copyrightable, so too with baseball statistics. But I do think there is a different issue of using athletes' names in conjunction with those stats, to the extent they are celebrities with "rights of publicity" arising from various state laws, who have a financial interest in their names, likenesses and personas, especially when they are used by an unlicensed 3rd party for commercial purposes. Fantasy baseball websites are not news reporting; there is no fair use, first amendment or public policy exemption for these companies to make a buck off the names of ballplayers (either through subscriptions or ads) without permission.

Vince Coleman Firecracker Jun 05 2008 10:51 AM

Do casinos with sports books pay money to MLB to show the results for games?

holychicken Jun 05 2008 10:57 AM

So if I have a blog that talks about baseball and that has gained enough attention that I have paid advertisement, I am infringing on MLB's intellectual property by mentioning their name? How about sports talk radio, do they have to pay MLB for the rights to talk about baseball and their players (I honestly don't know. . . I hope not)? It is a fine line, but I do not think using players in conjunction with their statistics *should* form an intellectual property infringement. Granted, the laws (or previous rulings to the law) may allow them to effectively argue that it does, but, IMO, that is disgusting. If it does, they are effectively saying that we are not allowed to talk about baseball players at all without permission if their is ANY hint of money involved.

Vic Sage Jun 05 2008 02:12 PM

its not necessarily about whether "money is involved". In our society, almost all newsgathering is done by for-profit corporations, but profit does not exclude the press from using their first amendment rights and they can report and make comment on public events (including use of footage, and other 3rd party material), based on the first amendment and the "newsworthy" exception in the fair use doctrine of copyright. So, too, can websites report and make comment, on blogs and elsewhere. But fantasy gaming's primary purpose is not "newsgathering" and so is not protected under that exception. They are a for-profit enterprise offering a game service, using the property of others as their primary material... property they don't pay for. As i said, its not the player stats or the outcomes of games that MLB can reasonably argue that they own (though they have unreasonably argued that they do). It's not a copyright or property issue at all, really. Its the individual players who have "rights of publicity" (as established under state law), and MLB which acts as their collective agent for brokering those rights, under the collective bargaining agreement (as far as I understand).

holychicken Jun 05 2008 03:01 PM

I see what you are saying and it definitely makes sense. I guess my standpoint is that it all comes down to entertainment. Whether I am reading about a baseball game, writing about it or playing fantasy baseball, it is all just entertainment to me. I am afraid if their are able to get their greedy hands on one form of entertainment, it paves the way through precedence to grab the next form. Who knows how long it is until "fair use" excludes blogs as well.

AG/DC Jun 05 2008 05:37 PM

Vic Sage wrote: Its the individual players who have "rights of publicity" (as established under state law), and MLB which acts as their collective agent for brokering those rights, under the collective bargaining agreement (as far as I understand). I'm pretty sure the union brokers the rights to the players' names (and images) for use in board games and, I'm assuming, computer games. I only found this out because, after strike years, Strat-o-Matic would publish the games with the cards lacking names for any players who crossed the picket line.

DocTee Jun 05 2008 05:54 PM

We discussed this in an earlier thread. A former student of mine, now finishing law school, just had an article published concerning copyrights and fantasy sports (do athletes "own" their likenesses, stats, etc)...pretty interesting, if esoteric, stuff. Published an article on this, too: Author: Ryan T. Holte Title: The Freedom to Imagine Fantasy Sports: Applying New Ideas in Copyright Law to Professional Athlete's Right of Publicity Citation: 54 J. Copyright Soc'y 771 (Summer 2007)

TheOldMole Jun 07 2008 06:44 AM

Doc - can you give us a summary?