Pending Lawsuit May Decide Whether Baseball Players’ Statistics Are Protectable Intellectual Property
A lawsuit currently pending in federal district court in St. Louis, C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., Case No. 05-CV-00252 (E.D. Mo.), concerns the right of a fantasy sports game provider to utilize baseball players’ names and playing statistics in its fantasy baseball games without licensing that information from Major League Baseball. (Click here for the complaint.) A court decision in this lawsuit could have major business ramifications for sports leagues, fantasy sports game companies, and any web site that charges a fee for a product incorporating athletes’ names and playing statistics.
CBC is a provider of fantasy sports games, including fantasy baseball in which participants “draft” their own teams of ballplayers whose playing statistics in selected categories during that season determine how well the participants’ teams do in their fantasy baseball league. Fantasy sports games is a large and growing industry, particularly on the Internet with popular web sites like Yahoo! offering fantasy sports games. Seeking to expand their businesses on the Internet, sports properties such as Major League Baseball have been aggressively pursuing new revenue opportunities and claiming broad intellectual property rights in products derivative of their on-the-field games. In that regard, Major League Baseball Advanced Media (“MLBAM”) in January 2005 entered into a five-year agreement with the Major League Baseball Players Association (“MLBPA”) totaling more than $50 million for an exclusive license to use and sublicense baseball player group rights for the creation of online games, including fantasy baseball games. CBC had a licensing agreement with MLBPA permitting the use of player names, likenesses, and playing statistics (among other information), which expired at the end of 2004. Apparently unable to reach a new agreement with MLBAM after it acquired the rights from MLBPA, CBC filed a complaint for declaratory relief in February 2005.
CBC’s complaint seeks a declaratory judgment that its use of baseball players’ names and statistics does not infringe on any intellectual property rights controlled by MLBAM, including copyright and the right of publicity. At least in their public comments after the filing of the complaint, MLBAM officials conceded that they do not dispute that player statistics are in the public domain. Instead, MLBAM contends that if another company uses players’ names and statistics in a fantasy game for commercial gain, then a license must be paid for that information.
The copyright claim should be resolved in CBC’s favor because the underlying facts of sporting events are not copyrightable under the Copyright Act. This was made clear by the decision in National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). In that case, the NBA sought to prevent real-time game scores and statistics from being transmitted over handheld pagers and on web sites and claimed a copyright in the information. The Second Circuit held that sports games are not copyrightable (as distinct from copyrightable broadcasts of the games) and that factual information from the games is similarly unprotected. Moreover, there does not appear to be a promising argument for MLBAM that the players’ statistics are copyrightable as compilations, because fantasy sports games do not rely upon playing statistics from past seasons. The data is not copied from a pre-existing work of authorship but is ascertained daily as each ballgame is played and a player does something in a statistical category – e.g., hits a home run, earns a run batted-in, steals a base, or strikes out a batter.
The right of publicity claim is likely where the outcome of this lawsuit hinges. The right of publicity, both at common law and under statutes enacted in many states, protects a plaintiff against the commercial appropriation of his or her name or likeness for the defendant’s advantage. MLBAM contends that providing a fantasy baseball game using players’ names and statistics violates the players’ rights of publicity, the group rights to which are exclusively licensed by MLBAM from the MLBPA. A motion by MLBPA to intervene in the lawsuit was granted, and MLBPA is making the same arguments about the players’ rights of publicity in a counterclaim against CBC.
One obstacle to MLBAM defeating CBC’s request for a declaratory judgment that no right of publicity exists is the victory that Major League Baseball achieved in Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001). In that case, several retired ballplayers alleged that Major League Baseball violated their rights of publicity by publishing their names and statistics in game programs and on its web sites without their consent and without compensation. The California Court of Appeal held that there was no violation of the plaintiffs’ common law or statutory rights of publicity. Balancing the players’ publicity rights against the First Amendment interest in the dissemination of information, the court concluded that the public interest favoring free dissemination of information outweighed any proprietary interests of the players. The court stated: “It is manifest that as news occurs, or as a baseball season unfolds. the First Amendment will protect mere recitations of the players’ accomplishments.” Id. at 410. MLBAM will try to distinguish Gionfriddo on the grounds that CBC is engaging in purely commercial speech in using players’ names and statistics to sell its fantasy games, entitling CBC to less First Amendment protection, whereas Gionfriddo involved recitation of historical facts about baseball by the league in order to promote its own product. Nonetheless, MLBAM will have difficulty overcoming Gionfriddo and prevailing on the right of publicity issue.
According to the court’s docket, a mediation is scheduled for October 24, 2005. If the parties do not reach a settlement and instead proceed with the litigation, intellectual property observers and sports lawyers will be watching this case closely.
CBC is a provider of fantasy sports games, including fantasy baseball in which participants “draft” their own teams of ballplayers whose playing statistics in selected categories during that season determine how well the participants’ teams do in their fantasy baseball league. Fantasy sports games is a large and growing industry, particularly on the Internet with popular web sites like Yahoo! offering fantasy sports games. Seeking to expand their businesses on the Internet, sports properties such as Major League Baseball have been aggressively pursuing new revenue opportunities and claiming broad intellectual property rights in products derivative of their on-the-field games. In that regard, Major League Baseball Advanced Media (“MLBAM”) in January 2005 entered into a five-year agreement with the Major League Baseball Players Association (“MLBPA”) totaling more than $50 million for an exclusive license to use and sublicense baseball player group rights for the creation of online games, including fantasy baseball games. CBC had a licensing agreement with MLBPA permitting the use of player names, likenesses, and playing statistics (among other information), which expired at the end of 2004. Apparently unable to reach a new agreement with MLBAM after it acquired the rights from MLBPA, CBC filed a complaint for declaratory relief in February 2005.
CBC’s complaint seeks a declaratory judgment that its use of baseball players’ names and statistics does not infringe on any intellectual property rights controlled by MLBAM, including copyright and the right of publicity. At least in their public comments after the filing of the complaint, MLBAM officials conceded that they do not dispute that player statistics are in the public domain. Instead, MLBAM contends that if another company uses players’ names and statistics in a fantasy game for commercial gain, then a license must be paid for that information.
The copyright claim should be resolved in CBC’s favor because the underlying facts of sporting events are not copyrightable under the Copyright Act. This was made clear by the decision in National Basketball Ass’n v. Motorola, Inc., 105 F.3d 841 (2d Cir. 1997). In that case, the NBA sought to prevent real-time game scores and statistics from being transmitted over handheld pagers and on web sites and claimed a copyright in the information. The Second Circuit held that sports games are not copyrightable (as distinct from copyrightable broadcasts of the games) and that factual information from the games is similarly unprotected. Moreover, there does not appear to be a promising argument for MLBAM that the players’ statistics are copyrightable as compilations, because fantasy sports games do not rely upon playing statistics from past seasons. The data is not copied from a pre-existing work of authorship but is ascertained daily as each ballgame is played and a player does something in a statistical category – e.g., hits a home run, earns a run batted-in, steals a base, or strikes out a batter.
The right of publicity claim is likely where the outcome of this lawsuit hinges. The right of publicity, both at common law and under statutes enacted in many states, protects a plaintiff against the commercial appropriation of his or her name or likeness for the defendant’s advantage. MLBAM contends that providing a fantasy baseball game using players’ names and statistics violates the players’ rights of publicity, the group rights to which are exclusively licensed by MLBAM from the MLBPA. A motion by MLBPA to intervene in the lawsuit was granted, and MLBPA is making the same arguments about the players’ rights of publicity in a counterclaim against CBC.
One obstacle to MLBAM defeating CBC’s request for a declaratory judgment that no right of publicity exists is the victory that Major League Baseball achieved in Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001). In that case, several retired ballplayers alleged that Major League Baseball violated their rights of publicity by publishing their names and statistics in game programs and on its web sites without their consent and without compensation. The California Court of Appeal held that there was no violation of the plaintiffs’ common law or statutory rights of publicity. Balancing the players’ publicity rights against the First Amendment interest in the dissemination of information, the court concluded that the public interest favoring free dissemination of information outweighed any proprietary interests of the players. The court stated: “It is manifest that as news occurs, or as a baseball season unfolds. the First Amendment will protect mere recitations of the players’ accomplishments.” Id. at 410. MLBAM will try to distinguish Gionfriddo on the grounds that CBC is engaging in purely commercial speech in using players’ names and statistics to sell its fantasy games, entitling CBC to less First Amendment protection, whereas Gionfriddo involved recitation of historical facts about baseball by the league in order to promote its own product. Nonetheless, MLBAM will have difficulty overcoming Gionfriddo and prevailing on the right of publicity issue.
According to the court’s docket, a mediation is scheduled for October 24, 2005. If the parties do not reach a settlement and instead proceed with the litigation, intellectual property observers and sports lawyers will be watching this case closely.
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