I. Introduction

      In fantasy sports leagues, fans draft current major league players to create their own imaginary roster, with the success of each team hinging on how each player performs throughout the season.[1] Internet sites such as Yahoo! and ESPN pay several million dollars for the right to operate fantasy leagues.[2] Major League Baseball (“MLB”), and St. Louis-based CBC Distribution and Marketing Inc. (“CBC”) have been entangled in a legal dispute over whether MLB players’ names may be used in fantasy baseball leagues.[3] This dispute is noteworthy because the fantasy sports industry generates over $1.5 billion dollars annually.[4] Should MLB prevail, they will hold exclusive rights to players’ names and statistics and may withhold such, likely causing fantasy baseball to be much less appealing to fans.[5] 

II.  Background

On August 8, 2006, a federal judge granted summary judgment to CBC and denied summary judgment for MLB, stating that the baseball players’ right of publicity was not violated when their names were used for fantasy baseball purposes.[6] CBC successfully argued that the players’ names, which are used for free when published in newspaper box scores, are part of the public domain and may therefore be used by anyone.[7] The court also stated that even if the right to publicity was found to be valid, the First Amendment takes precedence over this right.[8] Additionally, the court found that federal copyright law did not apply to this case because players’ names and records are not copyrightable material.[9] The court’s ruling allowed CBC and other companies that operate in the fantasy league industry to continue using professional athletes’ names and records.

III. Legal Issue

MLB has recently filed a writ of certiorari with the United States Supreme Court, calling for review of the CBC case and seeking a uniform standard for right of publicity cases.[10] MLB claims that the Eighth Circuit did not utilize the proper test in balancing publicity rights against First Amendment rights.[11] The proper test under state law, according to MLB, would have been to invoke the “predominant purpose” test. The "predominant purpose" test balances the artistic purpose of the use of the celebrity's identity against the commercial purpose.  If the commercial purpose prevails then there is no First Amendment shield.[12]  MLB further argues, had this test been used, the players’ publicity rights would have been upheld.[13] MLB’s counsel asks the Supreme Court to determine the proper standard applicable to the facts at hand, stating that six separate tests have been established by state and federal courts.[14]

Professor Rick Karcher proposes that in publicity claim cases, a “commercial advantage spectrum” should be utilized.[15] This spectrum would have on one end “non-commercial” purposes, wherein a defendant does not seek any commercial gain as a primary purpose of their use of an individual’s identity. The other end of the spectrum consists of the “commercial” end, which focuses on using the individual’s identity for commercial gain.[16] The problem in right of publicity cases arises when the use of information lies somewhere in the middle of this spectrum, according to Karcher.[17] Professor Karcher describes this region of the spectrum as “quasi-commercial,” containing the likes of sports trading cards and fantasy sports leagues.[18] The proposed fix advocated by Karcher entails a two part inquiry.  Firstly, one must inquire if the use of name or likeness of the individual ventures beyond news reporting, entertainment or literary purposes?  If so, the next step is to determine if the service or use provided would suffer significantly if the identity or likeness was not used, and to what extent?[19] The test proposed by Karcher would seem to protect individuals whose celebrity is relied on exclusively to turn a profit, but would allow newspapers and other media reporting services to continue to use players’ statistics and identities without having to pay royalties.

IV. Conclusion

The Supreme Court has not yet granted certiorari to hear the issue of right of publicity on this matter, it may be in the Court’s interest to do so. Hearing the case could perhaps create a uniform standard by which publicity rights cases in the arena of sports law may be decided. As previously mentioned, fantasy sports leagues are growing in popularity and profitability, this factor could also induce the court to rule on the matter.

Sources:

1. Christopher Leonard, MLB Takes Fantasy League to Court, ABC News,  Jun. 14, 2007, http://abcnews.go.com/Technology/wireStory?id=3279250.

2. Id.

3. Id.

4. Id.

5. Id.

6. Nate Ravitz, CDM Wins Lawsuit with MLBAM, RotoTimes.com, Aug. 8, 2006, http://www.rototimes.com/article.php?article_id=2266.

7. Id.

8. C.B.C. Distribution and Marketing, Inc. v. Major

League Baseball Advanced Media, L.P., 443 F. Supp.2d. 1077 (E.D. Mo. 2006).

9. Id.

10. Richard T. Karcher, Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy League Ruling, Sports Law Blog, Feb. 28, 2008, http://sports-law.blogspot.com/2008_02_01_archive.html.

11. Donna Walter, A pitch for judicial review: Will the Supreme Court swing? BNET, Mar. 1, 2008, http://findarticles.com/p/articles/mi_qn4185/is_20080301/ai_n24370903.

12. Michael Kahn, Fantasy Baseball 2, Real Baseball 0, Owners, Borrowers & Thieves 2.0, Oct. 16, 2007, http://iplitigator.huschblackwell.com/2007/10/articles/fair-use/fantasy-baseball-2-real-baseball-zero/.

13. Karcher, supra note 10.

14. Id.

15. Richard T. Karcher, The Use of Players' Identities in Fantasy Sports Leagues: Developing Workable Standards for Right of Publicity Claims, 111 Penn St. L. Rev. 557 (2007).

16. Id.

17. Karcher, supra note 13.

18. Id.

19. Karcher, supra note 15.