The request for a
rehearing of the case had been supported by other giants of US
sport, including the NFL, NHL, PGA Tour and Stock Car Auto
Racing.
In 2006, CBC Distribution and Marketing, owner of fantasy sports
site CDMsports.com, won a victory in a Missouri district court. CBC
went to court to establish its right to use, without a licence, the
names of baseball players and game results and statistics.
CBC's website lists baseball players for selection. Fans pay CBC
to take part in the fantasy leagues and additional sums to trade
players. Before the start of the professional baseball season,
participants build teams by 'drafting' players from various Major
League baseball teams. The success of a participant's fantasy team
over the course of the baseball season is dependent on one's chosen
players' actual performances on their respective actual teams. The
website also gives up-to-date stats, including batting averages and
home runs.
CBC went to court in 2006 seeking a summary judgment that would
declare its fantasy leagues lawful. It was pre-empting a lawsuit
from the Major League Baseball Players' Association and the
internet arm of Major League Baseball that had already complained
about its use of the data.
Major League Baseball counter-claimed. Its internet arm, Major
League Baseball Advanced Media, had paid $50 million to the
Players' Association in 2005 for internet rights to the players'
images and names for five years – and it wanted to sub-license
those rights to publishers and companies like CBC. It said that
CBC's fantasy league violated rights of publicity belonging to
players because it operated without a licence.
In August 2006, Judge Mary Ann Medler in the Missouri court said
that CBC "has not and is not violating the players' claimed right
of publicity." She reasoned that CBC's fantasy baseball products
did not use the names of major league baseball players as symbols
of their identities and with an intent to obtain a commercial
advantage, as required to establish an infringement of a publicity
right under Missouri law. Even if it were infringing the players'
rights of publicity, the first amendment right to free speech
pre-empted those rights, she ruled.
Judge Medler granted summary judgment to CBC. That ruling was
appealed. A three-judge panel in the US Court of Appeals for the
Eighth Circuit ruled in October 2006 that the players "offered
sufficient evidence to make out a cause of action for violation of
their rights of publicity under Missouri law." They reasoned that
because CBC used baseball players' identities for profit, these
identities were being used for commercial advantage. But they
accepted CBC's argument that the first amendment trumps the
right-of-publicity claim.
The Appeals Court wrote: "the information used in CBC's fantasy
baseball games is all readily available in the public domain, and
it would be strange law that a person would not have a first
amendment right to use information that is available to
everyone."
In October this year, Major League Baseball filed a petition for
a rehearing by a full panel of Appeals Court judges. That filing
was supported in a brief from professional associations for
football, hockey, golf and stock car racing which argued against
the Appeals Court's observation.
"It is not at all strange that, although information comprising
a celebrity's identity is available to everyone insofar as it is
publicly known, no one has a First Amendment right to exploit that
celebrity's identity for commercial advantage without the
celebrity's consent," argued the brief.
However, Major League Baseball's petition was denied last week,
without explanation. The organisation must now decide whether or
not to appeal the case to the US Supreme Court.
A UK lawyer said the same result should be expected over here if
there were a similar dispute over a fantasy football league.
"If a similar case came before the High Court in England based
on football statistics it would likely focus on trade mark rights,
database rights and personality rights," said Iain Connor, a
partner with Pinsent Masons, the law firm behind OUT-LAW.COM. "But
the decision would surely be the same as in the US."
"Such a claim would fail for essentially the same reason – the
information is publicly available and whilst money is being made
from the fantasy league it is not made at the expense of any
particular individual," said Connor.
Connor pointed to a 2003 court victory for Eddie Irvine against
Talk Radio. The former racing driver sued the radio station over an
unauthorised promotion that featured a doctored photo of him and
implied his endorsement of the station. He argued that the
publication damaged his reputation and goodwill and won
£25,000.
"To the extent personality rights exist under English law, the
footballers' individual rights are not being used by a fantasy
football league to endorse the league in an 'Eddie Irvine' sense
but merely to record and describe relevant statistics," said
Connor. "Similarly, even if players have registered their names as
trade marks, the fantasy football league would be using them
descriptively, so there's no claim there."
"There are some arguments around infringement of database rights
but on the basis that the operator of the fantasy football league
would be creating the database from live statistics as they
happened, it's unlikely that they could be stopped."
"If the operator stole all the data at once from a single
source, that could be a breach of database rights, but that's
unlikely to happen with a fantasy football league. To be run
properly, a fantasy league needs far more than just the final
scores. An operator needs lots of data from multiple sources so
will likely build its own database – and that's far, far safer in
legal terms."
Connor said problems are more likely to arise if an operator
embellishes the site with images of players.
