Major League Baseball Right of Publicity Case Strikes Out
Published By World Trademark Law Report September 19, 2006

In CBC Distribution and Marketing Inc. v Major League Baseball Advanced Media LP (Case 4:05cv00252MLM, August 8 2006), the US District Court for the Eastern District of Missouri has held that an operator of online fantasy baseball games does not require a licence from the Major league Baseball Players' Association to use players' names and playing statistics in its games.

The operator, CBC Distribution and Marketing Inc, filed an action for a declaratory judgment that, among other things, the baseball players' right of publicity does not apply to the use of publicly available information as such as player names and statistics.

The parties representing the baseball players' interests - Major League Baseball Players' Association and Major League Baseball Advanced Media - contended that CBC is violating active players' rights of publicity under state and common law. Under the law of Missouri, where the case is pending, and under right of publicity laws of other states, a plaintiff generally must establish that the defendant commercially exploited the plaintiff's identity without the plaintiff's consent to obtain a commercial advantage. There was no dispute in this case that CBC is using players' names and playing records without consent. The court focused on whether CBC is using players' names as a symbol of their identities to obtain a commercial advantage, and if so, there is injury.

On the question of commercial advantage, the court observed that there must be evidence such as to create the impression that a plaintiff is associated with the defendant's product, or using a plaintiff's name to attract attention to a product. The court concluded that nothing about CBC's fantasy games suggests that any player is associated with the games or that any player endorses or sponsors the games in any way. The court also noted that CBC's use does not involve the character, personality, reputation or physical appearance of the players; it simply involves historical facts about the players and their records. Thus, CBC's use does not involve the persona or identity of any player.

The court also concluded that policy considerations favour CBC's argument that the right of publicity does not apply. The right of publicity is aimed at preventing harmful or excessive commercial use of one's celebrity in a manner which could dilute the value of a person's identity. CBC's use of players' names and records does not go to the heart of the players' ability to earn a living as baseball players; they can earn a living playing baseball and endorsing products; they do not earn a living by publication of their playing records. Also, CBC's use of names and records does not give CBC something free for which it would otherwise be required to pay; records are readily available in the public domain.

The court also held that First Amendment protections (under the US Constitution) apply to non-traditional means of expression, including CBC's use of names and playing records on a website, and that CBC's use of this information for commercial purposes does not preclude First Amendment protection. Balancing First Amendment interests against the players' right of publicity, the court noted that the public has an interest in the dissemination of news and information. The public's interest in information about players' records suggests that these interests should be balanced in favour of the First Amendment.

The court held that copyright pre-emption does not apply. While player names and records are arguably within the subject matter of copyright, as used by CBC they are not copyrightable.

Finally, the court refused to find that CBC's expired licence from the players' association, which prohibited use of names and statistics without a licence, estopped CBC from using this information in its games. The court held that the strong federal policy favouring full and free use of ideas in the public domain prevails over the challenged contractual provisions in the expired licence agreement. The court therefore found prohibitions in the expired licence to be unenforceable and void as a matter of public policy.

This article has been reprinted with permission from the September 19, 2006 edition of the World Trademark Law Report.

Forward Thinkers