Info Tech Law: Three strikes and you’re out

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By Alan S. Wernick
Wernick & Associates

The U.S. Supreme Court says the right of publicity protects the proprietary interest of an individual to ”reap the reward of his endeavors.” Zacchini v Scripps-Howard Broadcasting Co. (1977). How does the right of publicity fare against the First Amendment? In a recent case, Major League Baseball stepped into the arena of the federal courts with this question, and struck out while trying to enforce rights of publicity.

Strike One

In C.B.C. Distribution and Marketing Inc. [CBC] v. Major League Baseball Advanced Media L.P. [MLB], (E.D. Mo. 2006), CBC filed a declaratory judgment action seeking to use, without license, the names of and information about major league baseball players in connection with CBC’s fantasy baseball products. CBC uses its Internet website (www.cdmsports.com) to sell its fantasy sports products, which incorporate the names, statistics, and biographical data of major league baseball players.

As the case evolved, the key issues became (1) whether the players have a right of publicity in their names and playing records as used in CBC’s fantasy games, and, if the players have such a right, whether CBC is violating the players’ claimed right of publicity; and (2) if the players have a right of publicity that has been violated by CBC, whether the First Amendment applies and, if so, whether it takes precedence over the players’ claimed right of publicity.

To determine the elements of the right of publicity, the district court cited the Missouri Supreme Court in Doe v. TCI Cablevision (Mo. 2003). In the TCI case, the Missouri Supreme Court held that ”the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” The district court held that CBC ” … is not violating the players’ claimed right of publicity.” The district court held that the First Amendment takes precedence over the right of publicity.

Strike Two

MLB stepped up to the plate in the 8th U.S. Circuit Court of Appeals (CA8, 10/16/2007). In examining the right of publicity issue, the court of appeals disagreed with the district court: ”Because we think that it is clear that CBC uses baseball players’ identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law.”

However, the court of appeals agreed with the district court that CBC’s First Amendment rights supersede the players’ rights of publicity. The 8th Circuit noted that, although this ” … dispute is between private parties, the state action necessary for first amendment protections exists because the right-of-publicity claim exists only insofar as the courts enforce state-created obligations that were ‘never explicitly assumed’ by CBC.” The U.S. Supreme Court directed in Zacchini that ” … state law rights of publicity must be balanced against first amendment considerations.” The appeals court concluded … that the former must give way to the latter.”

The 8th Circuit found persuasive a California decision, Gionfriddo v. Major League Baseball (Cal. Ct. App. 2001), in which MLB was, in effect, in CBC’s shoes seeking to protect MLB’s First Amendment rights, and defending MLB’s use of players’ names, likenesses, and information against the players’ asserted rights of publicity.

The Gionfriddo court stated that ”Major league baseball is followed by millions of people across this country on a daily basis … The public has an enduring fascination in the records set by former players and in memorable moments from previous games … The records and statistics remain of interest to the public because they provide context that allows fans to better appreciate (or deprecate) today’s performances.”

Also, the ”recitation and discussion of factual data concerning the athletic performance of [players on MLB's website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”

Turning its attention to CBC’s use of the Internet, the 8th Circuit states: ”We also find no merit in the argument that CBC’s use … is not speech at all. We have held that ‘the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games’ is speech entitled to first amendment protection. See Interactive Digital Software Ass’n v. St. Louis County, Mo. … (8th Cir. 2003).

Similarly, here CBC uses the ‘names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player’ in an interactive form in connection with its fantasy baseball products. This use is no less expressive than the use that was at issue in Interactive Digital.”

Strike Three

On June 2, 2008, the U.S. Supreme Court denied MLB’s petition for certiorari.

Game over.

The bottom line: the right of publicity is a viable legal right, but must be interpreted through the lens of the First Amendment.

© 2008 Alan S. Wernick