Wednesday, March 29, 2006

Joe's Presentation on Athletes' Right of Publicity in their Names & Stats

Attorneys and law students often refer to an area of law called “Sports Law,” which essentially means lawyers working for professional athletes, leagues, teams, advertisers, and others in engaged in the exhibition or promotion of sports. Many lawyers—even those who use the term—also call the concept of “sports law” a misnomer, because what it really involves is the intersection of various legal disciplines all at once. It’s probably not difficult to imagine the areas of law that impact sports on a regular basis—antitrust, labor, contract, insurance, real estate, and even criminal law. One area that sometimes gets overlooked when talking about sports law is its intersection with Intellectual Property law; namely copyright, trademark, and the all-but-forgotten right of publicity. Perhaps a reason that IP gets excluded from sports law is that patents aren’t generally a large factor.

A current battle in sports and IP law is being fought right now in a federal district court, where an online fantasy baseball operator has sued Major League Baseball and the MLBPA (Players’ Ass’n) to enjoin them from charging a licensing fee to any service making commercial use of players’ statistics.

First, a little background on fantasy sports is necessary. The Fantasy Sports industry trade group believes that 6 million people played fantasy baseball last year, and spent almost 15 days worth of time on it, and the industry is still growing at a rate of roughly 7% annually (and fantasy football is even more popular). Fantasy baseball—Rotisserie baseball—involves a group of people drafting players onto their “own” teams, and then keeping track of their team's statistics over the course of the season to see who wins. In today’s day of Internet communication the service provider does all the calculating and scoring, but before fantasy sports were online, contestants had to keep track of the stats themselves: They had a fantasy league "commissioner" who entered the stats weekly from the U.S.A. Today, and then mail reports to the team “managers.” Professor Michaels recall playing this way in the mid 1980s, when he discovered" such players as Edgar Martinez, Frank Thomas and Cecil Fielder.

The licensing fee being demanded by the League and Players’ Association is essentially being compelled so that the fantasy operators can use the players’ stats. Statistics of course are more or less facts, which are not copyrightable. See Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340 (1991). Compilations of facts can be entitled to copyright protection, however the players’ names and statistics do not seem to supply the requisite "originality" necessary to warrant copyrightability. See Jack F. Williams, Who Owns the Back of a Baseball Card?: A Baseball Player’s Rights in his Performance Statistics, 23 Cardozo L. Rev. 1705, 1710–12 (May 2002).

While the copyright claim doesn’t seem to hold much water, more plausible is the claim that fantasy leagues violate the players’ right of publicity. The players’ right of publicity creates a substantive right in their names and “likenesses,” and prevents them from commercial exploitation without their own consent. See id. at 1713. There is one case that goes against the League in which some old-timers sued baseball for printing their names and stats in a program (since 1947, the uniform player contract has authorized such publication, but this claim was based on stats from earlier years). See Gionfriddo v. MLB, 94 Cal. App. 4th 400, (2001). MLB won and the players lost in that case, but now the League has come over to the player's side.
Although a right of publicity claim is colorable, there are a number of obstacles in the League’s way regarding the defense of the claim:

1. Right of Publicity is a state law claim (in most states). This is important for a couple of reasons--each state can have different elements that must be proven before the court will grant relief; and perhaps more importantly, since it's a state law claim there is no federal question jurisdiction. Therefore, a plaintiff would have to assert an alternative independent jurisdictional basis to get into federal court.

2. Assignment of Right of Publicity. How would the League sue for Right of Publicity in the first place? Right of Publicity is not like a trademark, in that it is not registrable per se. Also, Right of Publicity is not assignable in the same manner as a Patent, Copyright, or Trademark. To be sure, the right of publicity is assignable, but this type of assignment would be strictly scrutinized by the courts, because it is analogous to an "assignment in gross." In Trademark law, for example, an assignment in gross is considered abandonment. See, e.g., Hat Corp. v. D.L. Davis Corp., 4 F. Supp. 613 (D. Conn. 1933) (assignment of personal name by the son of the president of a famous hat mfr. was an assign. in gross, since the son had not been involved in the business); cf. Rick v. Buchansky, 609 F. Supp 1522 (S.D.N.Y.), dism'd 770 F.2d 157 (2d Cir. 1985) (musical act's mgr. is the owner of group's TM despite the turnover of members).

Part B, if you will, of bringing these suits is standing: Although the assignment of a right of publicity generally grants ownership to the assignee, this ownership is limited to offensive uses of the right (i.e., the right to exploit commercially). The personal interests protected under the right of privacy are usually untransferable, thus defensive uses of the right (i.e., asserting a claim for invasion of those rights against a 3d party) are only actionable by the assignor. See Restatement (Third) Unfair Comp. § 46(g).

3. Assuming no. 2 is correct, meaning the League could not assert itself as a plaintiff, each player would have to file his own suit against each alleged infringer. There is another possibility, however. See Allen v. Nat'l Video, 610 F. Supp. 612 (S.D.N.Y. 1985) (celebrity brought Lanham Act § 43(a) suit against defendant for using his look-alike in their TV commercials). The Woody Allen case is a good example of why Right of Publicity cases are difficult to win. The State of New York did not have a common law claim for Right of Publicity, so Allen brought a Lanham Act claim--because defendant's advertisements created a likelihood of consumer confusion as to the sponsorship of its goods.

Ordinarily, 43(a) is a broad section in the Lanham Act that is intended to provide relief when a defendant's goods or services are likely to cause consumer confusion about their source or origin. The district court found that the store’s advertisements were likely to cause consumer confusion as to whether Woody Allen was actually in the ads or not, and consequently whether Allen was endorsing the store. Along these lines, if the League could assert a claim that Fantasy players are likely to think that the Fantasy leagues they play are sponsored by MLB, then MLB could use 43(a). It's a stretch, but it worked for Allen.

Obviously, litigation of these claims will become convoluted, because of the way right of publicity is somewhat derived from privacy rights. See, e.g., J. Thomas McCarthy, Trademarks & Unfair Competition § 28:1, at 28–3 (1996); Prosser on Torts. Privacy seems a very unsettled area of law, and compounded with all the other legal issues, the League could have a difficult time defending these cases as they progress.


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7:02 PM  
Blogger duffee said...

Here's the question I raised in class:

Players (or the MLBPA) must license their publicity rights for use in baseball cards. Isn't a web page containing player names, pictures, and stats just the equivalent of an electronic baseball card, implicating the same issues with regard to publicity rights?

2:56 PM  
Blogger seongyoune said...

I personally think baseball video games are a lot more likely to lead to right of publicity suits than fantasy baseball games (if done without licensing) because the video games generally have likenesses of the players (characters made up of 3D polygons) that are supposed to be of a certain skill level relative to other characters and that we control to generate our own stats in a similated season or career. In contrast, the only thing that comes close to being a likeness in fantasy baseball are the pictures of players (no more than a face with a cap on) that are also available in any sports website. Arguing that there is a right of publicity suit just seems like a real stretch. I think baseball cards are somewhat like video games because they often show players in action and not just their face but I do have difficulty articulating what the distinguishing factor would be if a player page on a fantasy baseball site contained his pictures from game-time action.

On a different note, I think stats are news in that they are what someone has done (the only difference being that it can be expressed in numbers). I don't know if it's possible for a celebrity to enjoin members of the media from reporting about what he or she did. Unless that's possible, I can't imagine a player claiming some sort of ownership over stats. Of course, I might be unaware of some body of law which would make that possible.

8:54 AM  
Blogger Milt Sutton said...

This seems to be to fall under an educational use - statistics are reported and used to compile scores. I don't see how such a suit could withstand an educational or newsworthy claim...

12:49 PM  
Blogger Christine said...

I agree with seongyoune's comment - they should not own their stats - they are playing a game - publicly - and getting paid alot of money for it. It does not seem that the stats are private, or misleading, etc. I understand the Woody Allen scenario - you don't want people to think you support something or are associated with something that you are not. Particularly if it has a negative connotation. But, they are publicly part of American baseball - and if anything this might increase their popularity.

You mentioned in class - the idea that to avoid the issue - they could come up with their own code. Another thought on this - we have been discussing parody in Copyright recently. If you used funny nicknames or animated pictures of the players - would this resolve the issue?

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