17 Pages Posted: 10 May 2009 Last revised: 5 Jun 2009
Date Written: May 1, 2008
This article provides an in-depth analysis of the ongoing legal battle in C.B.C Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P. and particularly examines the Eastern District of Missouri’s and Eighth Circuit Court of Appeals’ analysis of the right of publicity, the First Amendment, and copyright law.
In 2006, the Eastern District Court of Missouri handed down a decision that promised to have a wide-ranging effect on the future of online fantasy sports. In 2007, that decision was affirmed in a divided 2-1 vote by an Appellate Board for the Eighth Circuit. While the district court judge held that players do not have a right of publicity in the names and playing statistics as used in an online fantasy baseball game, the appellate court held that players do in fact have a right of publicity. While the two courts came down differently on this issue, both agreed that even if a right of publicity existed here, the First Amendment trumps that right. District Judge Medler’s decision (affirmed by the Eighth Circuit) has broad reaching implications for the entire genre of fantasy sports operations.
The ultimate decision in C.B.C Distribution will go a long way toward determining the course of the multi-billion dollar industry of fantasy sports. Web sites such as ESPN.com and Yahoo.com are able to generate revenue in a variety of ways. Both sites feature stories, advertisements, a variety of games, and other sections of interest. For CBC, its sole source of revenue is its fantasy sports games. The site does not offer other content, stories, or sections that appeal to the masses. Fantasy baseball requires a niche audience that has a fascination with statistics and how a player performs throughout the season. Fantasy baseball is the lifeblood of CBC’s business operation.
If the U.S. Supreme Court were to r everse this ruling in favor of Advanced Media, it would initiate a slippery slope, creating a scenario in which a famous person’s name could never be used for entertainment value. Trivial Pursuit, Cranium, and other trivia -based board games use the names of famous people for the purpose of asking questions. Where does the line begin and end with respect to what is considered a legal use of a person’s name? Trivial Pursuit would have to eliminate two entire categories of questions if it was not permissibl e to use names. Two Pop Culture versions are now ma de – they include categories such as movies, TV, sports, and ames. In these versions, players are asked questions on hot gossip, celebrity trivia, and movie information. You cannot have a game based o n popular culture without using the athlete and celebrity names that make up Pop Culture, because the Arts & Entertainment and Sports questions are so heavily based on the use of athlete and celebrity names. Cranium has a new Pop version that asks questions and requires acting out.
On an even simpler level, any time you go to the movie theater, trivia questions and scramble puzzles appear on the screen prior to the start of the previews. These questions almost always include the name of a celebrity or athlete. Is every theater across the country licensing the names of these famous folks? It is highly doubtful.
Keywords: fantasy sports, baseball, right of publicity
Suggested Citation: Suggested Citation
Evans, Stacey B., Whose Stats are They Anyway? Analyzing the Battle Between Major League Baseball and Fantasy Game Sites (May 1, 2008). Available at SSRN: https://ssrn.com/abstract=1402006 or http://dx.doi.org/10.2139/ssrn.1402006