October 16, 2007

posted by Neil Richards

I'm having trouble seeing how the court's First Amendment analysis is consistent with Zacchini v. Scripps-Howard Broadcasting Co. or with the existence of a right of publicity for celebrities. The fact that baseball players' statistics are "readily available in the public domain" does not distinguish them from the identities or likenesses of other celebrities such as Bette Midler and Elvis Presley. Neither does the fact that baseball players are paid handsomely for their participation in baseball games. Further, as in Zacchini, defendants' First Amendment interests are relatively weak since baseball statistics and fantasy baseball are going to be available to the public regardless of the outcome.

I can see a public policy argument for not extending the right of publicity to sports names and stats, but I can't see the First Amendment argument for limiting the scope of state law.

Isn't it a bit simplistic to say that famous people can't own the facts of their biographies? Doesn't it depend what they're used for? If Apple's "Think Different" campaign had used short biographies of celebrities rather than their images, could they have got around asking permission? I think not.
See McFarland v. Miller, 14 F.3d 912, 919 (3d Cir. 1994) ("Although the publication of biographical data of a well known figure does not per se constitute an invasion of privacy, the use of the same data for the purpose of capitalizing upon the name by using it in connection with a commercial project other than the dissemination of news or articles or biographies does.") (quoting Palmer v. Schonhorn Enters., Inc., 232 A.2d 458, 462 (N.J. Super. 1967)).

Personally, I was hoping this decision would give me some insight into why my rotis team finishes (just barely) out of the money, year after year.

AF - Briefly (and in my personal capacity rather than my representative one):

1. Zacchini did uphold the right of publicity in that case, but did so because the "entire act" was appropriated and the media videoptaping in that case would deprive the act of its value. It actually (like most SCt cases balancing the First Amendment against rights derived from the right of privacy) subjects the right of publicity to fairly searching review. I'm not sure that statistics would be available "regardless of the outcome" as newspapers are also commercial enterprises that report the names and statistics of players for a commercial purpose. I'm also not sure that's the relevant test.

2. I don't think that celebrities can own the public facts of their accomplishments, but in any event the use of celebrities in advertisements creates risks of consumer confusion that are not present in the right of publicity case (which your quote from McFarland recognizes). In any event, if we exclude fact-based games from First Amendment protection, where does this leave Jeopardy! or Trivial Pursuit?

Joseph - at least this decision gives you a wide variety of options in terms of whom you will lose money to in rotisserie next season!

Nice to see this ruling as it would have opened the flood gates for a lot of issues regarding publicly accessible results and stats. However, there is a fine line that the court will have to walk now in this issue. For example, delayed results vs. live results.

Several years ago the US PGA Tour won their lawsuit to be able to own the "LIVE" results of their tournaments. At this time the US PGA Tour, and by default through the court's ruling, the court is defining "LIVE" as being within 30 minutes of when the US PGA Tour posts the results.

Does anyone think that ruling in the case with the MLB and CDC will affect the US PGA Tour "LIVE" scoring lawsuit? Or is "LIVE" a big difference between "DELAYED" in this case?

Link to info about the US PGA Tour live golf score lawsuit issued by a media outlet (Morris Communications):

http://www.law.com/jsp/article.jsp?id=1074259249111

Thanks.

Neil -- Thanks for the response. Zacchini did not hold that the right to publicity should be subject to equivalent review as other SCt cases balancing the First Amendment against rights derived from the right of privacy. On the contrary, it explicitly distinguished right of privacy precedents and instead looked to intellectual property law, noting that the right of publicity "is closely analogous to the goals of patent and copyright law, focusing on the right of the individual to reap the reward of his endeavors and having little to do with protecting feelings or reputation."

Also, the right to publicity in some jurisdictions goes well beyond the right to prevent a "risk of consumer confusion" in advertising. As the 10th Circuit noted in Cardtoons:

Although publicity rights are related to laws preventing false endorsement, they offer substantially broader protection. Suppose, for example, that a company, Mitchell Fruit, wanted to use pop singer Madonna in an advertising campaign to sell bananas, but Madonna never ate its fruit and would not agree to endorse its products. If Mitchell Fruit posted a billboard featuring a picture of Madonna and the phrase, "Madonna may have ten platinum albums, but she's never had a Mitchell banana," Madonna would not have a claim for false endorsement. She would, however, have a publicity rights claim, because Mitchell Fruit misappropriated her name and likeness for commercial purposes. Publicity rights, then, are a form of property protection that allows people to profit from the full commercial value of their identities.

Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959, 967-968 (10th Cir. 1996)

Zacchini and Cardtoons suggest that the proper framework for analyzing the limits of the right to publicity is fair use. (In fact, Cardtoons explicitly said it was using the First Amendment as a stand-in for fair use). Under a fair use framework, it would be simple enough to distinguish fantasy baseball from Trivial Pursuit, based on factors such as the amount used, the effects on the market, and, most importantly, the transformative nature of the use.

I'm not saying that the defendants' case was a slam dunk (to mix metaphors) but I find the court's First Amendment analysis very unpersuasive.

I agree that Zacchini looked at the IP analogy, but the way I read the case, it's the importance of the appropriation of the "entire act" (a phrase used repeatedly) and the deprivation of the main part of the economic value of the activity on which the result turns. Cardtoons of course isn't binding on the Eighth Circuit, though it does cite the case. I was persuaded by the Court's analysis (but I would be, I suppose), because I don't think this is a hard case under the First Amendment.

P.S. Speaking of the slam dunk metaphor, I've always wanted to see a judge who used the phrase "slam dunk" given a basketball and a hoop and asked to demonstrate! I suppose the metaphor may refer to fitting easily within an established boundary (which I think is how you are using it), but people often use it to mean easy, which it isn't without a ladder for most people.

Baseball needs to look at the big picture. It is in their long term best interest if they release all stats publicly in real time for free use. Also, they should assist users in utilizing this data for use in fantasy baseball programs. The popularity of baseball will increase exponentially as the amount of fantasy baseball participants increase. I'm more of a fantasy football guy myself, but I can tell you I would watch baseball much more closely if I was in a F.B.L.. Right now I really I'm only concerned with the Cubs. Past that I only know what SportsCenter tells me.