Baltimore Orioles, Inc. V. Major League Baseball Players Association: The Right of Publicity in Game Performances and Federal Copyright Preemption

28 Pages Posted: 10 May 2018

Date Written: 1989

Abstract

This Note focuses on the Seventh Circuit's holding that federal copyright law preempts players' state law rights of publicity in their game performances. Part I outlines the procedural history of the Baltimore Orioles litigation to explain how the court reached a decision without addressing the underlying contract claim. It then discusses the right of publicity and its relationship to professional athletes. Next, it summarizes requirements for federal copyright preemption. The remaining parts of this Note evaluate the validity of the Baltimore Orioles holding that federal copyright law preempts the state right of publicity. Part II analyzes the copyrightability preemption requirement as applied to (1) players' performances, and (2) videotapes of performances. Part III examines equivalency, the second condition of preemption, under three different methodologies: legislative history review, the ‘additional element’ test, and ‘nature of the right’ analysis. Part IV gives an overview of courts' positions on federal preemption of state right of publicity actions since the enactment of section 301(a) of the Copyright Act. Finally, this Note assesses the Baltimore Orioles decision's potential impact on right of publicity protection for athletes and other professional performers.

Keywords: right of publicity, game performances, copyright law, preemption, sports, professional athlete, equivalency

Suggested Citation

Saxer, Shelley Ross, Baltimore Orioles, Inc. V. Major League Baseball Players Association: The Right of Publicity in Game Performances and Federal Copyright Preemption (1989). UCLA Law Review, Vol. 36, No. 4, 1989. Available at SSRN: https://ssrn.com/abstract=3168109

Shelley Ross Saxer (Contact Author)

Pepperdine University School of Law ( email )

24255 Pacific Coast Highway
Malibu, CA 90263
United States

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