America’s Favorite Pastime: Adding up the Stats for a Fantasy Success

by Meghan Collins February 19 2010, 10:38

America’s Favorite Pastime: Adding up the Stats for a Fantasy Success

 

Introduction

  As pitchers prepare to report to training camp, America’s favorite pastime is gearing up for the 2010 season.  While players begin competing and vying for a coveted spot on the team roster, many Americans participating in fantasy baseball leagues are preparing to draft their own “dream team.”  Each year fantasy baseball leagues gain more attention and participation, with an average of 29.9 million active users spending over $800 million dollars directly on fantasy sports products as well as $3 billion of sporting goods. [1] Within this lucrative field, the Major League Baseball Association (“MLB”) as well as the Major League Baseball Players Association (“MLBPA”) worry that the financial success of the fantasy sports industry may hinder potential revenue possibilities.  Through the use of professional baseball players’ performance statisics to determine the overall success of the fantasy teams, issues of copyright infringement as well as violation of the right to publicity arise, resulting in lawsuits against licensing deals and the overall leagues. Although professional athletes claim to have a right of publicity in their name as well as performance statistics, fantasy baseball leagues should continue as is because performance statistics are not copyrightable under the Federal Copyright Act and litigation in this matter would far exceed the benefits received by the MLB.

            This article will examine the contractual obligations of fantasy sports leagues to the MLB, copyrightable material and how performance statistics do not fall under such a category, and how the right to publicity has been trumped by First Amendment rights by cases such as C.B.C. Distribution and Marketing, Inc. v. Major League Advanced Media, L.P. as well as statutory interpretation. 

 

Background

  With an impact of $4.48 billion in 2008, fantasy sports leagues have revolutionized the way individuals experience the game. [2] Although fantasy sports are not a new phenomenon, it now proves easier and less costly for individuals to follow on the internet rather than through newspapers and other periodicals, creating a greater following through increased access. [3]   To participate in fantasy league sports, individuals create teams and compete against one another by maintaining rosters of actual professional athletes and use players’ real game statistics to score points. [4] These statistics are gathered and input into online databases, leading to the ultimate question of who owns them and how the rights to any profits such statistics produce. [5]

As the success and popularity of fantasy sports grew throughout the 1990s and early 2000s, the question of whether or not fantasy league operators were required to obtain licenses for the right to use athlete names and statistics became the subject of significant dispute. [6] Although fantasy providers must obtain licensing from the professional team organizations for any use of protected marks, such as team names and logos, the notion of fair use and statistics still drifted with uncertainty. [7] To combat this confusion, a groundbreaking 8th Circuit case brought this issue to the forefront of the public eye.  In C.B.C. Distribution and Marketing, Inc. v. Major League Advanced Media, L.P., (“CBC”) one online fantasy sports provider challenged this issue, considering whether ownership over professional performance statistics was possible. [8]  The majority opinion held that the First Amendment trumped Major League Baseball Player’s right to publicity and allowed licensing of statistics for use in online fantasy sports. [9]  Since this case’s holding, the professional baseball players as well as the MLB have come to terms with the fact that their statistics are found within the public domain, unable to be protected by copyright, and the licensing First Amendment agreements overcome any right to publicity arguments regarding the legality of the league. [10]

Analysis

  Despite the fact that the earliest fantasy leagues were unlicensed, by the mid-2000s a bifurcated industry developed in which the larger, more established fantasy leagues were licensed and paid royalties whereas the smaller companies operated unlicensed games. [11] Through the balance of the competing interests of MLB players, including their rights of publicity against the public interest as well as statistical ownership, the CBC holding demonstrated that statistics are within the realm of public domain and a prima facie right to publicity does not exist in such leagues. [12]  Although CBC was merely a fantasy league case based on professional baseball, subsequent cases such as CBS Interactive v. National Football League Players’ Association, upheld the CBC standard, noting the lack of differences between fantasy football and fantasy baseball in terms of statistical ownership and publicity rights. [13] 

Under court analysis, there is no valid copyright ability in facts. [14]  In baseball, these facts come in the form of statistics, including: home runs, runs batted in, steals, and wins by pitchers. [15] A sports statistic by itself is a fact; there exists no author because the player causing the event to occur through the action of “hitting a baseball can no more claim ownership over that event than a driver could claim ownership over a report of her automobile accident.” [16] Furthermore, these statistics are readily available in the public domain and like all First Amendment issues, the right of information within the public domain is accessible by all. [17]  Because these statistics are facts and readily available, they lack originality vital to its copyright potential along with fixation. [18]  A copyright grant has traditionally been viewed as an incentive to encourage new works by assuring authors that they will reap the benefits of their intellectual labor, however, no originality to produce a copyrightable idea is available and no incentive to reproduce this statistic exists.  [19]  The reproduction incentive does not apply to professional sports statistics, because as a compilation created through the collection and assembling of preexisting materials or of data, the facts are merely arranged in no manner resembling a new or original product. [20]  Furthermore, the originality in the arrangement of facts is essentially a non-factor for online fantasy sports providers because fantasy sports databases allow their customers to search every statistic contained in the database in any order and fashion as that user pleases. [21]

In conjunction with the MLBA’s copyright argument against CBC, a right of publicity claim also served at the forefront of the opinion.  The right of publicity centers around “one who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or the other indicia of identity for the purpose of trade.” [22]  This right is recognized under the common law of eighteen states and of those eighteen, eight have statutory counter-parts that are broad enough to encompass the common law right of publicity.  [23]  In determination of the right to publicity in fantasy sports leagues, the district court in CBC explained that “use of athlete information does not give them something free which it would otherwise be required to pay; players’ records are readily available in the public domain.” [24] Therefore, since the public can look up these statistics free of charge within the public domain and the supplier of such information does not make a profit from listing these numbers, the players are not missing out on a chance to make revenue and therefore not within the publicity right. 

 

Recommendations

        After the holding in CBC, it is evident that a professional athlete has no ownership over his performance and the right to professional sports statistics is held within the public domain.  Litigation over the licensing and the right of publicity within the fantasy sports league industry would prove ineffective and overall costly to the parties involved. Overall, the average MLB player’s career is 5.6 years, one in five of all position players play only a single season in the majors, while less than half of the players remain in the league long enough to play five seasons. [25] Furthermore, the CBC court concluded that professional baseball players are so well rewarded that the elimination of revenue from fantasy league licensing fees would have virtually zero impact on the players’ ability to enjoy the fruits of their labor. [26] Hence, the players remaining in the league long enough to build up their statistical background for the sports industry league would reap little to no benefits from litigation matters.  Therefore, the fantasy league industry should remain as is and allow the individuals involved to enjoy America’s Favorite Pastime should be left to its entertainment value. 

 

Conclusion

         The world of sports entertainment has taken on a myriad of changes since the introduction of the internet.  Some of these changes come from the ability to follow favorite teams through their websites to watching sporting events in real time, and finally the ability to track fantasy sports leagues with great ease.  Through the use of fantasy sport leagues online, professional associations of players as well as of the sports themselves, questions as to ownership of certain rights arose.  With the court holding that professional statistics are not copyrightable and exist within the public domain, fantasy leagues can continue to utilize such information as well as maintain their licenses to continue the success of a phenomenon that has flourished over the past few decades.  The internet has alleviated much of the stress of finding information and condensing it into a compatible medium.  Therefore its use has tremendously helped the worlds of sports entertainment to continue its steadfast grip and fascination of the population.

 

 

 

 

[1] Fordham Intellectual Property Media & Entertainment Law Blog, http://iplj.net/blog/archives/354 (last visited Feb. 8, 2010); Fantasy Sports Trade Association, http://www.fsta.org/ (last visited Feb. 10, 2010). 

[2] Fordham Intellectual Property Media & Entertainment Law Blog; Matthew G. Marrari, When Fantasy Meets Reality: The Clash Between On-Line Fantasy Sports Providers and Intellectual Property Rights, 19 Harvard Journal of Law & Technology 443, 452 (2006). 

[3] 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. 585, 561 (2006-2007).

[4] Michael J. McSherry, The Right of Publicity and Fantasy Sports: Should Professional Athletes Wield Control Over Their Identities or Yield to the First Amendment?, available at http://www.kentlaw.edu/perritt/courses/seminar/papers%202009%20fall/mike%20mcsherry%20-%20final%20-%20The%20Right%20of%20Publicity%20and%20Fantasy%20Sports.pdf (last visited Feb. 8, 2010); Matthew G. Marrari, When Fantasy Meets Reality: The Clash Between On-Line Fantasy Sports Providers and Intellectual Property Rights, 444.

 [5] Brandon T. Moonier, Legal Game behind Fantasy Sports: Copyright Protection and the Right of Publicity in Professional Performance Statistics, 26 St. Louis U. Pub. L. Rev. 129, 130(2007). 

[6] Scott Hervey, Fantasy Sports League Hits It Out of the Park in Challenging MLB's Ownership Of Player Statistics, Nov. 23, 2007, available at http://www.theiplawblog.com/archives/-trademark-law-fantasy-sports-league-hits-it-out-of-the-park-in-challenging-mlbs-ownership-of-player-statistics.html.

[7] Matthew G. Marrari, 446.

[8] Id.

[9] Fordham Intellectual Property Media & Entertainment Law Blog; C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 (8th Cir. 2007). 

[10] Fordham Intellectual Property Media & Entertainment Law Blog

[11] Michael J. McSherry, The Right of Publicity and Fantasy Sports: Should Professional Athletes Wield Control Over Their Identities or Yield to the First Amendment?.

[12] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P., 505 F.3d 818 at 823. 

[13] CBS Interactive v. National Football League Players’ Association, 2009 WL 1151982 (D. Minn. Apr. 28, 2009).

[14] Feist Publications, Inc. v.  Rural Telephone Service Co., 499 U.S. 340 (1991).

[15] Brandon T. Moonier, Legal Game behind Fantasy Sports: Copyright Protection and the Right of Publicity in Professional Performance Statistics, 137. 

[16] Matthew G. Marrari, 447-8.

[17] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 825. 

[18] Copyright Act, 17 U.S.C. § 102(a)(2000).

[19] Brandon T. Moonier, 134. 

[20] Id. at 133.

[21] Id. at 137. 

[22] Restatement Third of Unfair Competition § 46.

[23] Brandon T. Moonier, 141. 

[24] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 824.

[25] Fordham Intellectual Property Media & Entertainment Law Blog

[26] C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced, L.P. at 825.

 

 

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