Sports and the Right of Publicity
By Assaf Ben-Atar
Last year, IPLJ Blogger Matthew Stark praised The United States Court of Appeals for the Eighth Circuit’s decision in C.B.C. Distribution and Marketing, Inc. v. Major League Advanced Media, L.P.,1 which held that the First Amendment trumped Major League Baseball Player’s right to publicity to license their statistics for use in online fantasy sports. Consequently, on September 3rd, 2008, CBS Interactive, Inc. (“CBS”) filed suit in the United States District Court for the District of Minnesota against the National Football League Players, Inc. (“NFL Players”), requesting an injunction against the NFL Players seeking licensing control of the use of its player statistics in their online fantasy sports games. The NFL Players countersued in the US District Court in Southern Florida for damages arising from CBS’ property infringement stemming from its use of player statistics in their only fantasy football games.2 Currently, the Minnesota District Court has yet to rule on the NFL Players’ motion to dismiss and CBS Interactive’s motion for summary judgment.
The right of publicity is a generally recognized property right of well-known individuals to control the unlawful appropriation of their identities by commercial entities.3 According to the Third Restatement of Unfair Competition, “One who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability,”4 The right of publicity has been recognized by twenty-five states.5
In CBC, the Eighth Circuit, following Supreme Court precedent established in Zacchini v. Scripps-Howard Broadcasting Co.,6 balanced the competing interests of MLB Player’s rights of publicity against the high public informational interest inherent in First Amendment rights. In Zacchini, a reporter for Scripps-Howard filmed Hugo Zacchini perform at the Geauga County Fair. Zacchini’s act consisted of shooting himself from a cannon into a net 200 feet away. Zacchini asked the reporter not to film his performance, but he did so, and Howard-Scripps broadcast the act in its entirety during the eleven o’clock news. As a result, Zacchini brought suit against Scripps-Howard alleging that their broadcast commercialized the film of his act, and thereby unlawfully appropriated his professional property.
Justice White, writing for a six-justice majority, stated that the right of publicity be balanced against First Amendment interest in dissemination of news and information.7 The Court recognized that the right of publicity creates economic incentives by providing the faculty to protect the product of individual creativity and skill.8 Economic value of performance exists only because of the ability to assert exclusive control over it.9 Therefore, infringement upon publicity rights constitutes unjust enrichment that threatens one’s “ability to earn a living as an entertainer.”10
The C.B.C. court proceeded to cite two California cases involving denials of baseball right of publicity claims. In Gionfriddo v. Major League Baseball, the California Appellate Division rejected a group of retired players’ claim that MLB violated their right of publicity when it rebroadcast games without authorization, which they played in, over the Internet. The Court reasoned that “[t]he recitation and discussion of factual data concerning the athletic performance of these plaintiffs commands a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.”11
Furthermore, in Cardtoons, L.C. v. Major League Players Association,12 the Tenth Circuit held that a parody baseball card producer did not violate MLB player’s rights of publicity since “[s]peech that entertains, like speech that informs, is protected by the First Amendment because ‘[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.’”13
Using these precedents, the Eighth Circuit’s analysis followed the trend in pointing out the glaring fact that baseball statistics are “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.”14 Subsequently, the Court denied the MLB Player’s right of publicity claim by dismissing their economic interests: “[B]y providing right of publicity to individuals. . . . states seek to promote . . . the right . . . to reap the rewards of his or her endeavors and an individual’s right to earn a living. . . . But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship agreements.”15 The Court is thus implicating that state interests in individual intellectual property rights should fluctuate depending on their relative value to the owner. Additionally, the suggestion that baseball players have only a token use for licensing fees is debatable, and particularly unsuitable to the current NFL Players case given that contracts are not guaranteed in the NFL Collective Bargaining Agreement.
The C.B.C. decision is difficult to reconcile with earlier cases that rejected commercial manufacturer’s assertion that they could freely use celebrities and athlete’s identities in their products while the same exact information was also published in newspapers. Specifically, in Uhlaender v. Hundricksen,16 the Court enjoined a private manufacturer of baseball parlor/table games from using Major League Baseball Player’s identity and statistical information.17 The Court held that the players possessed a right of publicity because a “celebrity must be considered to have invested his years of practice and competition in a public personality which eventually may reach marketable status. That identity, embodied in his name, likeness, statistics and other personal characteristics, is the fruit of his labors and is a type of property.”18
Additionally, in Palmer v. Schonhorn Enterprises, Inc.,19 the Court held that the manufacturer of a paper-board box golf game violated the property rights of Arnold Palmer, a famous professional golfer, because it contained a “Profile and Playing Chart” with a short profile of his playing career.20 Thus, it is confusing as to why online fantasy sports do not require players licensing agreements, while video and board games do.
Online fantasy sports has a huge market impact. According to a 2008 survey conducted by the Fantasy Sports Trade Association, 29.9 million active users spend $800 million dollars directly on fantasy sports products, and use $3 billion dollars worth of related products. Fantasy sports total market impact is estimated to be $4.48 billion dollars.
Most Major League Baseball Players do not make enough money to afford losing licensing fees. Major League Baseball’s player’s minimum salary is $390,000. In addition, although 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.
The situation for NFL Players is worse. Their minimum rookie salary is $193,000 while the average career lasts 3.5 seasons. In addition, the generally violent nature of football along with the recent revelation of long-term brain injuries among retired players indicates that professional football athletes will have severe difficulties maintaining steady employment once their athletic career ends.21 Therefore, it will be interesting to see if the new litigation takes these discrepancies between baseball and football careers into account when ruling on NFL Player’s publicity rights.
1 505 F.3d 818 (8th Cir. 2007).
2 Florida’s statute against unauthorized publication of name or likeness, FLA. STAT. §540.08 (2009), provides stronger protection for the misappropriation of athletes and celebrities identities for commercial purposes than Missouri Law, which the 8th Circuit used in the CBC v. MLB dispute. See also http://amlawdaily.typepad.com/amlawdaily/2008/10/who-owns-sports.html.
3 63C Am. Jur. 2d Property § 6.
4 Restatement (Third) Of Unfair Competition § 46 (1995).
5 Thomas McCarthy, The Right of Publicity and Privacy § 6:1.
6 433 U.S. 562 (1977).
7 See Id. at 574–5 (“It is evident, and there is no claim here to the contrary, that petitioner’s state-law right of publicity would not serve to prevent respondent from reporting the newsworthy facts about petitioner’s act. Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer’s entire act without his consent.”); Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 409 (2002).
8 Zacchini at 574–5.
9 Id. at 575.
11 Gionfriddo at 411.
12 95 F.3d 959 (1996).
13 Id. at 969 (quoting Winters v. New York, 333 U.S. 507, 510 (1948)).
14 C.B.C. at 823.
15 Id. at 824.
16 316 F. Supp. 1282 (D. Minn. 1970).
17 Id. at 1283.
18 Id. at 1282.
19 96 N.J. Super. 72 (N.J. Super. Ct. Ch. Div. 1967).
20 Id. at 74, 79–80.
21 See Bryan Lipsky, Note, Dealing with the NFL’s Concussion Problems of Yesterday, Today, and Tomorrow, 18 Fordham Intell. Prop. Media & Ent. L.J. 959 (2008).