And if the problem is that I "claim to own" David Ortiz, isn't that just ridiculous on its face? No one is going to be confused and believe that I in fact have David Ortiz signed to a baseball contract.

Of course not. But look at it this way: Suppose a company came out with a game in which you bought and traded guys with names generated at random, with no ability whatsoever to connect "John Doe" with "David Ortiz." No news articles discussing what "John Doe's" status is, no pictures of any MLB players, no logos or team names. All you are trading is "John Doe," "Peter Edwards," "Willie Johnson," etc. Would you still be interested in playing this game?

MLBAM says that you wouldn't, and it is only because you can connect the stats with actual MLB players that you play the game in the first place.

No, I agree that that's true, and if that's your definition of "ownership," well, it's not "ownership" by any definition I know of, but, fine. But then you have to explain why I can make an encyclopedia with David Ortiz' name and stats. I'm not the judge so it don't matter none, but I found the idea that it's different because one is a "game" and the other is to "disseminate information" to be tremendously unconvincing.

Right now, it would not be allowable with a board game that included his biography and picture, or probably any game where you did use him as a player piece in any way based on his past performance.

What case is this in what jurisdiction? I'm not questioning the point, just interested in reading it.

It's only because "Player X" is David Ortiz that anyone cares. You're doing business off his identity, not the stats.

I would say the opposite. It's only because of his stats that anyone cares who David Ortiz is as far as fantasy baseball is concerned.

For those who believe MLBAM should win (anyone who says they know who will win is guessing right now), how do you feel about NBA v. Motorola? Is it rightly decided as a matter of policy?

Talk amongst ya-selves....

BRIEF OF APPELLANT MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION

SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT

For roughly ten years, the Major League Baseball Players Association (“MLBPA”) licensed CBC Distribution and Marketing, Inc. (“CBC”) to use defined “Player Rights” in CBC’s products, fantasy baseball games. In the license agreements, CBC agreed not to use or challenge the rights after the agreements expired. When the agreements expired and CBC could not get a new one, CBC for the first time asserted, and the trial court held, that CBC’s use of Player Rights does not violate players’ publicity rights under Missouri law, and that CBC’s statelaw contract obligations cannot be enforced.

CBC’s conduct violates Missouri’s publicity rights law, and enforcement of those rights does not affect expressive activity or violate the First Amendment. At the very least, disputed issues of material fact precluded summary judgment for CBC. Alternatively, no federal statute addresses publicity rights and thus federal law does not preempt enforcement of CBC’s state-law contract obligations.

MLBPA requests 20 minutes of oral argument. These issues are of substantial importance for players’ rights specifically and for all individuals asserting publicity rights. Further, if the incorrect decision that state-law contract rights are preempted by federal law is permitted to stand, it will undermine the rules governing federal preemption in intellectual-property cases.

Full documents here

But then you have to explain why I can make an encyclopedia with David Ortiz' name and stats.

Because then all you are doing is reporting news, not much different than a newspaper.

I would say the opposite. It's only because of his stats that anyone cares who David Ortiz is as far as fantasy baseball is concerned.

If you're a savvy player, yes. Still, you have to admit that many folks tend to acquire players they happen to like IRL, regardless of their stats.

More importantly, though, see my Post #101.

Alternatively, no federal statute addresses publicity rights and thus federal law does not preempt enforcement of CBC’s state-law contract obligations.

Argument being made that prior summary judgment usurps federal law on the state level. At least, that what these "non-lawyer" eyes see.

Maury -- These are very helpful documents. Thanks. Do you happen to have CBC's Appellee Brief?

Also, most likely, MLBAM filed a Reply Brief.

But why does that matter? You're making money off connecting his name with his stats, which is what I was just told a moment ago the test was. Is the test actually how analogous you are to a newspaper? If so, why? And why would it extend to an encyclopedia, which is obviously not like a newspaper in many respects, and yet no further? This is all just obfuscating the issues of what's being protected, where the authority to protect it comes from, and why the line logically should be drawn in a certain place.

But why does that matter? You're making money off connecting his name with his stats, which is what I was just told a moment ago the test was. Is the test actually how analogous you are to a newspaper? If so, why? And why would it extend to an encyclopedia, which is obviously not like a newspaper in many respects, and yet no further? This is all just obfuscating the issues of what's being protected, where the authority to protect it comes from, and why the line logically should be drawn in a certain place.

In the case of newspapers, encyclopedias, record books, and the like, all you are doing is reporting facts. It's no different that if you wrote a book on any other current or historical event.

In the case of fantasy sports, however, you're not simply reporting events; you're creating a product (i.e. "fantasy David Ortiz") and allowing customers to buy, sell, or trade it. You're not simply saying "David Ortiz hit 40 HRs"; you're saying "you own fantasy David Ortiz, and what ever he does in real life, he does for your team."

MLBAM says that you wouldn't, and it is only because you can connect the stats with actual MLB players that you play the game in the first place.

I would counter by saying that you play the game because you recognize the stats as facts of performance that happened within the timeframe of "current MLB season."

It seems impossible to have the facts exist without the player names. Saying "Joe Blow hit 43 HR in 2007" is meaningless because Joe Blow does not exist.

If I sell a 'Baseball Award Trivia Game' with questions like "Who won the MVP award in MLB's 2004 season?" should I be expected to pay A-Rod (and the other three answer choices) for appropriating their likenesses? At what point do we just say these are facts that are in the public domain and don't deserve the protection of other intellectual property rights?

But why does that matter? You're making money off connecting his name with his stats, which is what I was just told a moment ago the test was. Is the test actually how analogous you are to a newspaper? If so, why? And why would it extend to an encyclopedia, which is obviously not like a newspaper in many respects, and yet no further? This is all just obfuscating the issues of what's being protected, where the authority to protect it comes from, and why the line logically should be drawn in a certain place.

What matters is which side has the biggest stable of lobbyists and lawyers. Guess which side that is.

I think some of the distinction that is getting lost here b/w encyclopedias/newspapers and fantasy sports is that the former contain things past, while the latter deals with prospective activity - you are concerned with current and future performance of David Ortiz. That's why the virtual "ownership" question is important. We're not really talking about stats by themselves.

In the case of fantasy sports, however, you're not simply reporting events; you're creating a product (i.e. "fantasy David Ortiz") and allowing customers to buy, sell, or trade it. You're not simply saying "David Ortiz hit 40 HRs"; you're saying "you own fantasy David Ortiz, and what ever he does in real life, he does for your team."

How is that different from a fantasy stock market game, where you own "fantasy Coke, and whatever that corporate entity does in real life, it does for your team"?

You're making money off connecting his name with his stats, which is what I was just told a moment ago the test was.

That's not the way I read the test (realize that I'm not reading it as a lawyer would). The way I read the test, if making money is your primary motivation for connecting his name with his stats, then you may be in the situation where you run afoul of the RoPu law even if there is some expressive value in the product you are producing. The default assumption on the part of the courts is that book publishers, news media, and the like have dissemination of information and/or ideas as their primary motivation for what they do, not commercial gain. The primary motivation for an encyclopedia as I see it is to facilitate the dissemination of information, in this case collecting widely scattered information and combining it into a single work for ease of use. I can't see where a fantasy game provider has a primary motivation for linking names of players to stat lines that would come anywhere close to anything other than making as much money as possible by so doing.

-- MWE

It seems impossible to have the facts exist without the player names. Saying "Joe Blow hit 43 HR in 2007" is meaningless because Joe Blow does not exist.

Exactly. Suppose a company created a game where one purchase "Joe Blow," "Peter Blow," "Ed Blow," etc. and you have no way of connecting these characters with MLB players. Would you play?



If I sell a 'Baseball Award Trivia Game' with questions like "Who won the MVP award in MLB's 2004 season?" should I be expected to pay A-Rod (and the other three answer choices) for appropriating their likenesses? At what point do we just say these are facts that are in the public domain and don't deserve the protection of other intellectual property rights?

See my Post #110.

The default assumption on the part of the courts is that book publishers, news media, and the like have dissemination of information and/or ideas as their primary motivation for what they do, not commercial gain. The primary motivation for an encyclopedia as I see it is to facilitate the dissemination of information, in this case collecting widely scattered information and combining it into a single work for ease of use. I can't see where a fantasy game provider has a primary motivation for linking names of players to stat lines that would come anywhere close to anything other than making as much money as possible by so doing.

-- MWE

Unless they are giving it away for free, commercial gain is their (the newspaper, et al) primary motivation.

In the case of fantasy sports, however, you're not simply reporting events; you're creating a product (i.e. "fantasy David Ortiz") and allowing customers to buy, sell, or trade it. You're not simply saying "David Ortiz hit 40 HRs"; you're saying "you own fantasy David Ortiz, and what ever he does in real life, he does for your team."

It's too bad that it's a bit more difficult to enact a constitutional amendment to nip this sort of bullsh1t in the bud than it is to find a court that might swallow the idea that David Ortiz is somehow "victimized" because he's being "sold" in a fantasy league.

Someone raised the point earlier, I know, but it is rather droll to see that lawyers see Ortiz and Co. victimized by fantasy league owners, but not by stalking paparazzi. This is one of life's little parodies that can't be invented. Where is good old King Kaufman now that we need him, to tell MLB just to "shut the #### up."

What matters is which side has the biggest stable of lobbyists and lawyers. Guess which side that is.

Well, CBC has at least two amicus briefs filed on their behalf, and they and their allies are represented by Bryan Cave, Wilson Sonsini, and other high-powered firms.

I think some of the distinction that is getting lost here b/w encyclopedias/newspapers and fantasy sports is that the former contain things past, while the latter deals with prospective activity - you are concerned with current and future performance of David Ortiz. That's why the virtual "ownership" question is important. We're not really talking about stats by themselves.

As a matter of policy, therefore, should casino sportsbooks be obligated to pay for the right to sell the service of wagering on sporting events? In essence, when you make your wager, you are similarly speculating on the future performance of a given entity. Should it matter if it is "The New York Mets" or "David Wright"? I'm sure someone, somewhere will take action on whether David Wright will hit X HR in a given time period. Are you suggesting that such a person should (as a matter of policy, mind you) owe something to Wright for the use of his name?

How is that different from a fantasy stock market game, where you own "fantasy Coke, and whatever that corporate entity does in real life, it does for your team"?

I'm not sure if it is different. In fact, if MLBAM prevails, I would suspect that those type of games would be in peril.

In the case of fantasy sports, however, you're not simply reporting events; you're creating a product (i.e. "fantasy David Ortiz") and allowing customers to buy, sell, or trade it. You're not simply saying "David Ortiz hit 40 HRs"; you're saying "you own fantasy David Ortiz, and what ever he does in real life, he does for your team."

How is that different from a fantasy stock market game, where you own "fantasy Coke, and whatever that corporate entity does in real life, it does for your team"?

C-Bird, I hope that with that unfortunate comment you haven't given some lurking NYSE lawyer any ideas....and with that Post #121, apparently you did.

The Corporate Nanny State is exactly what we're fast becoming, if we aren't in that state already. It makes the government's version look positively effeminate by comparison.

As a matter of policy, therefore, should casino sportsbooks be obligated to pay for the right to sell the service of wagering on sporting events?

No, because in that example, you aren't trading on the teams/players; you're trading on their outcomes. IOW, the sports books aren't saying "we created this fictional concept known as 'Barry Bonds' who's actions mirror what Barry Bonds does in real life, and you have the right to acquire the fictional concept if you wish."

I'm not sure if it is different. In fact, if MLBAM prevails, I would suspect that those type of games would be in peril.

"Coke" is a trademark with it's own source of legal protection. If there is a likelihood of confusion of source (i.e. that the game was a "coke" product), then the game would be in trouble. This situation is unlike that one.

[Now, with more Edits!]

Thanks, SSA.

Fine, but if the law actually thinks encyclopedia makers are motivated more by the milk of human kindness than by money, then that's as bad as it thinking that baseball isn't interstate commerce.

Thinking of them as being in the business of selling "fantasy David Ortiz" is the best argument I've heard yet. And I do understand that the offending product doesn't need to be reflecting on him badly; he can just not want to be associated with it. The thing, though, is that he's not really being "associated" with anything, IMO: he's not being associated with the fantasy player who owns him, and he's not being associated with the company running the game. If it's a right to publicity for the purpose of protecting people from being associated with things they might not endorse, and if he's not being associated with anything, then what argument does he have, other than the simple "I want"? Saying "it's his name, so only he can make money off it" asserts the conclusion before providing the logic.

Fine, but if the law actually thinks encyclopedia makers are motivated more by the milk of human kindness than by money, then that's as bad as it thinking that baseball isn't interstate commerce.

This misses the whole point. There is a difference between reporting facts (as a newspaper or encyclopedia does) and creating a construct based on a player, then using that construct for the purpose of a game.

Thinking of them as being in the business of selling "fantasy David Ortiz" is the best argument I've heard yet. And I do understand that the offending product doesn't need to be reflecting on him badly; he can just not want to be associated with it. The thing, though, is that he's not really being "associated" with anything, IMO: he's not being associated with the fantasy player who owns him, and he's not being associated with the company running the game. If it's a right to publicity for the purpose of protecting people from being associated with things they might not endorse, and if he's not being associated with anything, then what argument does he have, other than the simple "I want"? Saying "it's his name, so only he can make money off it" asserts the conclusion before providing the logic.

But he is associated with it by simply being included. IF David Ortiz's right to privacy means anything it is his ability to opt out (setting to one side the collective issues). Imagine, if there are several games and there's one David doesn't like because it is put out by some company he doesn't like, he says, No Way. The game doesn't have him in it. Kid A says, "Do you play Adolph's Fantasy Almost Complete MLB baseball?" "No, because it doesn't include David ORtiz, he's my favorite player." Obviously, that's not how it will play out, but you can see how being included is just being "associated," especially when you are a high profile player.

Mind you, I'm not necessarily agreeing with MLBPA's argument; I'm just trying to explain what it is.

The default assumption on the part of the courts is that book publishers, news media, and the like have dissemination of information and/or ideas as their primary motivation for what they do, not commercial gain. The primary motivation for an encyclopedia as I see it is to facilitate the dissemination of information, in this case collecting widely scattered information and combining it into a single work for ease of use.

I think that is a really questionable assumption. The primary goal of a given newspaper, book publisher, or encyclopedia manufacturer is still commercial. The dissemination of information is merely the method.

IMO, the primary motivation question (news vs. commercial gain) is not a sound basis for drawing any distinctions in this area b/c almost all books, magazines, etc. are created for commercial gain. A baseball encyclopedia might be disseminating facts, but the publisher is trying to make money. As I see it, the important distinction is really endorsement: does the use of the player's name suggest that the player is endorsing or supporting the product? In the case of "David Ortiz's Fantasy Baseball," the answer is obviously yes. In the case of a baseball encyclopedia or generic fantasy game that simply uses the players names and stats, I think the answer is just as obviously no.

For this reason, I think the best approach from a policy perspective might be to amend the Lanham act to make right of publicity a subset of trademark law and preempt all state laws.

I think that is a really questionable assumption. The primary goal of a given newspaper, book publisher, or encyclopedia manufacturer is still commercial. The dissemination of information is merely the method.

I don't think courts assume that is their primary motivation. I think they realize that it is their primary function.

I'm not sure if it is different. In fact, if MLBAM prevails, I would suspect that those type of games would be in peril.


Corporations or other non-natural entities do not have a Right to Publicity. They may have rights in trademark, or under dilution theory. I'm not sure this case will legally read on that situation; it may politically read on that situation.


Argument being made that prior summary judgment usurps federal law on the state level. At least, that what these "non-lawyer" eyes see.


No, there is no federal law on RoPu. The argument advanced by CBC is that Federal Copyright law pre-empts state RoPu law. In essence that the federal government has already passed a law that covers this conduct, so the state cannot pass a law that says something different.

As David stated, and the MLBAM brief states, that is just wrong, and I cannot see that little piece of the decision having any precedential value, whatsoever. That would be landmark. The magistrate judge would have undone ALL RoPu law in existence.

... encyclopedias.

DA,

You can refer to my other posts for more information. There are two distinct steps in this MO test.

(1) Is there commercial gain.
(2) Is the speech protected by the first amendment.

You are hung up on only 1. Encyclopedias fall in (2). Now the bottom line on this, is that is the way it is. The courts have spoken vis a vis encyclopedias and on some games. If you want something different, it has to be legislated.

The rationale of the courts is that their is large protection and social benefits to having information and news disseminated. There is not public policy on being able to use the fame of another to promote a commercial enterprise for gaming.

The decision cited earlier by Emeigh does not do a great job of granularly articulating the distinction because it was the foundational case on the matter. Its legal distinction lies in the primary use of the name, and that only goes to protected speech. It sets forth the test. Seperate decisions analyze what is commercial (which is what you cite). Subsequent decisions clarify factual situations where the use of the name is not incidental (using MA terms, but the jurisprudence is the same) or otherwise protected.

re: 124

I don't mean "Coke" the trademark. I mean "KO," the stock symbol that represents Coca-Cola. Like fantasy baseball, in the stock market game, you're speculating on a something that once resolved, is nothing more than a reportable fact. (Coca-Cola stock went up 3 points on whatever date.)

re: 121

Do you like this result as a matter of policy?

There are two very different questions:

1) What is the law? (we're going to find out)
2) What should be the law? (and why?)

Certainly #1 is what really matters to MLBAM and to CBC. But #2 is more interesting, I think.

Corporations or other non-natural entities do not have a Right to Publicity. They may have rights in trademark, or under dilution theory. I'm not sure this case will legally read on that situation; it may politically read on that situation.

Duh. Thanks for the reminder. ;)

As I see it, the important distinction is really endorsement: does the use of the player's name suggest that the player is endorsing or supporting the product? In the case of "David Ortiz's Fantasy Baseball," the answer is obviously yes. In the case of a baseball encyclopedia or generic fantasy game that simply uses the players names and stats, I think the answer is just as obviously no.

That sounds very reasonable.

If you turn into a question of who's gaining commercially from a player's identity, then you have to go through the all the legalistic contortions of developing hair-splitting distinctions.

No, because in that example, you aren't trading on the teams/players; you're trading on their outcomes. IOW, the sports books aren't saying "we created this fictional concept known as 'Barry Bonds' who's actions mirror what Barry Bonds does in real life, and you have the right to acquire the fictional concept if you wish."

So, assuming betting was legal everywhere, if these leagues had a small cash prize, then they would all be allowable, since the players would then be trading the outcomes, not the fictional player? Sure they would be the cumulative outcomes of many players, but it would still be the outcomes. Maybe I don't get it, but I don't see a distinction between gambling and fantasy sports with no prizes. When I draft a fantasy player, I want his outcomes. When I bet on an athlete, I want their outcomes.

IMO, the primary motivation question (news vs. commercial gain) is not a sound basis for drawing any distinctions in this area b/c almost all books, magazines, etc. are created for commercial gain.

No one has yet disagreed with the assertion that all uses of the names being brought up in this thread are for commercial purposes. This is becoming a major red herring.

Commercial use is a foundational question that must be asked in MO (and most states). You don't have to ask it in CA; you have to ask if there is any benefit whatsoever.

First test solved. The test that matter is whether the speech is protected.

I'll try one more analogy to see if I can make this clearer.

The speed limit is 55 MPH. A lot of people drive faster than 55. Some don't get caught, they thus don't get a criminal or civil violation. They are moot to this question. Some drive faster than 55 because they are bringing a sick person to the hospital (ambulance or otherwise). In this case, they have a defense of necessity, or more practically, people just have the common sense not to make a big deal out of it. Others get tagged going 105 MPH. They generally have some sanction.

Now you have a person that is caught doing 66 in a 55. They have broken the speed limit. That question is done. They might argue:

(a) Bringing wife to hospital
(b) Late for an affair with mistress
(c) Car stalls under 65
(d) Didn't know they were speeding
...

Which of these do you allow and where do you draw the line. The fact that an ambulance was doing 70 is immaterial.

As I see it, the important distinction is really endorsement: does the use of the player's name suggest that the player is endorsing or supporting the product?

RoPu is larger than this. If its only endorsement, it is already covered under the Lanham Act as a federal matter.

Do you like this result as a matter of policy?

There are two very different questions:

1) What is the law? (we're going to find out)
2) What should be the law? (and why?)

Certainly #1 is what really matters to MLBAM and to CBC. But #2 is more interesting, I think.

Now that you're asking my opinion, I don't really have a problem with it. A ruling in MLBAM's favor won't affect John Q. Public, who can still play fantasy games through ESPN, Yahoo, Sportsline, and other sites who have paid licensing fees to MLBPA.

One thing I wonder about, though, is whether it would affect things like "Dead Pools," where people make lists of folks who they predict will pass away during the next year, earning points if they do. I would think that it is more like gambling than a fantasy sport, but I could imagine an online outfit creating a game about it and selling leagues in which customers could acquire "Robert Downey, Jr." and trade him if they want. That would seem to cross the line.

So, assuming betting was legal everywhere, if these leagues had a small cash prize, then they would all be allowable, since the players would then be trading the outcomes, not the fictional player? Sure they would be the cumulative outcomes of many players, but it would still be the outcomes. Maybe I don't get it, but I don't see a distinction between gambling and fantasy sports with no prizes. When I draft a fantasy player, I want his outcomes. When I bet on an athlete, I want their outcomes.

It's neither an easy concept to explain nor understand. Take a look at my Post #s 96, 101, 110, and especially 123.

Maybe I don't get it, but I don't see a distinction between gambling and fantasy sports with no prizes.

IMHO, you do get it. See my post, and see if it helps. The only possible meaningful distinction would be the express state license.

btw- Can you prospect bet on players at Sports Books. I've never seen this when I've gone to Vegas. I've seen it on teams. I think you can in London, but keep this in mind, RoPu is drastically different in London.

They are very low key on this one. If a celeb poses for a photograph, there is a near unlimited right of the copyright holder in the photograph to publish that item. There is a landmark case in MA, which holds that even though the stars can't control that RoPu in Europe, and even if they initially posed for the photograph in another location-- the artist still has all their RoPu rights in the Commonwealth. Therefore, you can take and sell the Mick Jagger picture freely in the EU, but if you sell it in the commonwealth without Jagger's permisssion, he has a cause of action under RoPu.

Hopefully, AlouGoodbye can come by and clarify the European (or at least British) RoPu laws where I have mistated them.

I mean "KO," the stock symbol that represents Coca-Cola.

??? - There is no right to publicity in a stock symbol that identifies a corporation either. In fact, there is unlikely any trademark either. You can't even give dilution theory a whirl in that scenario.

Also, from my initial post. "Fair Use" is a concept in copyright law. "Fair Use" is read into trademark law. "Fair Use" has not expressly been read into MO RoPu law at any point (and most other states for that matter).

Fair use is usually broader than constitutionally protected speech. If fair use was an available defense to RoPu violation, then the game is entirely different.

No one has yet disagreed with the assertion that all uses of the names being brought up in this thread or for commercial purposes. This is becoming a major red herring.

And no one has disagreed with your point that there's a line or continuum of protected vs. unprotected speech. It's becoming a red herring.

Which of these do you allow and where do you draw the line. The fact that an ambulance was doing 70 is immaterial.

Yes, where to draw the line is precisely the point at issue. I'm trying to come up with a rational approach. You're mostly talking about what the law is. As Crosbybird notes, what the law should be is more interesting.

RoPu is larger than this.

It should not be IMO.

btw- Can you prospect bet on players at Sports Books. I've never seen this when I've gone to Vegas. I've seen it on teams.

IIRC from the last time I was in Vegas, you can make prop bets on players (i.e., will Pujols hit 40 HRs?). I would think that this type of wagering would not be affected by this case.

The rationale of the courts is that their is large protection and social benefits to having information and news disseminated. There is not public policy on being able to use the fame of another to promote a commercial enterprise for gaming.

Right, and I would indeed rather be without fantasy games than encyclopedias, but OTOH, the only way fantasy games are actually hurting anyone is if you're already assuming that Papi's right not to be associated with "Fantasy David Ortiz" exists and is being violated. I guess it's a question of whether your fist is ending or my nose is beginning: I'm assuming that the right shouldn't apply unless there's something major at stake for it to protect, but you could just as easily assume that it should apply unless there's a compelling reason for it not to. I guess it ultimately comes down to where this right is found and what it was intended to protect. And I guess in this case, that's up to Missouri?

Also, does it matter (this is an honest question, not a loaded one) that "fantasy David Ortiz" is intangible and is worth $0 on the open market? It's obviously distinguishable in that sense from me printing up and selling David Ortiz baseball cards. No one's going to buy David Ortiz in ESPN League #49482 off me. "Fantasy David Ortiz" confers no economic benefit on me, and unless you assume what you're trying to prove, takes none away from David Ortiz.

It's neither an easy concept to explain nor understand. Take a look at my Post #s 96, 101, 110, and especially 123.

I've read them. I think I understand what you (and MLB) is trying to say....creating and marketing a fictional representation of this person infringes on their right of publicity. But what makes fantasy leagues fictional and gambling not fictional? The results of both are determined by the real events and statistics that will happen in the future. There is no real ownership of the athlete either way, just a coorelation between the athlete and the player. The only distinction I see is that money changes hands differently based on the two forms of commerce.

I'm assuming that the right shouldn't apply unless there's something major at stake for it to protect, but you could just as easily assume that it should apply unless there's a compelling reason for it not to. I guess it ultimately comes down to where this right is found and what it was intended to protect. And I guess in this case, that's up to Missouri?

Well, the common law says the right does exist, but I agree that what's at issue is whether it extends this far.

As far as this case is concerned, the court is applying Missouri law and it's decision would only be directly binding on other cases in Mossouri federal courts or in 8th Circuit cases applying Missouri law. For other cases -- either in Missouri state courts or in the state/federal courts in any other state -- the decision would be "persuasive authority" that other courts could (but probably won't) reject if they wish.


Also, does it matter (this is an honest question, not a loaded one) that "fantasy David Ortiz" is intangible and is worth $0 on the open market?

But it's not worth $0. It, and the other fantasy creations, and the service the company provides, is worth whatever the company charges to its customers.

But what makes fantasy leagues fictional and gambling not fictional?

This is what I was trying to get at in #123. In a sports book, you are strictly betting on the outcome itself. In fantasy leagues, you are acquiring the ownership rights to a fictitious construct that is based on the MLB player. You use this construct to play a game and the outcomes in real life determine the outcome of the game, but this is irrelevant. The point is that what CBC is selling it's customers is "fictitious David Ortiz," whereas what Vegas is selling is just a bet.

I'm way behind on this thread, so I'll just start writing down responses to comments as I get to them:

Zonk [8]: the issue is not "the numbers," so whether "the numbers" "get out" is irrelevant. Nor is the issue here individuals playing fantasy baseball in their dorm or office. The issue here is corporations that run fantasy games.

Andy [12]: the difference is that the defendants here are not merely publishing statistics. If that's all they were doing, they would be in the same position as encyclopedias, etc. (which would be protected by the first amendment.) They're running games. I know a lot of people miss this distinction, or don't consider it important, but it is legally significant.

As for your second point, TSN and Elias may claim copyright in their BOOKS, but not in the stats, which cannot be copyrighted. (What they can claim copyright in, at least theoretically, is the specific arrangement of the stats, *if* there is some originality in the way the stats are compiled. But that would literally protect the physical arrangement of the statistics -- the order of the players listed, the order of the statistics in the chart, the choice of statistics published, etc. Not the underlying statistics.)

Phenom [15]: one finds the phrase "right of publicity" in the Constitution in the same paragraph one finds the phrase "sexual assault" or "condominium." That is, it isn't in the Constitution, but what on earth does that have to do with anything?

Yeargh [18]: I see no novel first amendment issue at stake. As I mentioned previously, this is really the same thing as baseball cards. They're publishing statistics as well. But that doesn't mean they can do it without paying the players.

But it's not worth $0. It, and the other fantasy creations, and the service the company provides, is worth whatever the company charges to its customers.

But it's not worth $0. It, and the other fantasy creations, and the service the company provides, is worth whatever the company's customers areilling and able to pay for it.

Let me try a different approach:

What the fantasy operators are doing is selling a game. The object of these games is to accumulate the best set of statistics as they are generated over time. Hypothetically speaking, those statistics could be randomly generated or they may be something like the temperatures in various state capitals -- it doesn't really matter and no one is saying that the fantasy operators don't have a right to make these games and sell them to the public. If all they did was sell statistical compilations, no one would have a problem with this. In fact, it would be essentially what Vegas does -- i.e., create games based solely on outcomes.

The problem is when the fantasy operators are going to the next step -- they are saying that "we're going to call this particular string of statistics 'David Ortiz' and that particular string of statistics 'Johan Santana." They are assigning characters to these statistics and these characters have the name of MLB players. Whether the stats actually match their performances is actually irrelevant. The problem is that the fantasy operators are taking an MLB player and attaching him to a string of statistics for the purpose of their game.

A ruling in MLBAM's favor won't affect things like sports books, where what is being sold is a straight wager, nor encyclopedias, which simply report results. What it might affect is companies like Diamond Mind Baseball, who creates games based on the identities of current/past players. To my knowledge, DMB has licensed the rights to use these names.

But it's not worth $0. It, and the other fantasy creations, and the service the company provides, is worth whatever the company's customers areilling and able to pay for it.

Fair enough. What's your point?

Re: 116

One can only hope there will be a Peter Blow in the fantasy oral [arguments].

It had to be done.

Especially as how no one commented on my post from the first page regarding how the newspapers always have made money from box scores and using them to sell papers. It wasn't "just facts" even then.

Granted, perhaps the far-more-qualified legal minds here felt that was non-starter, which I would certainly accept.

But still: PETER BLOW!

Thanks dJF. I don't think I'm going to come around, and I doubt more discussion will help. When I get a fantasy player, I feel more like I'm betting on his future results than I do feel like I own him. There might be a feeling of ownership of that individual that goes along with it, but it is the results that drive the outcome of the game, not the feeling of ownership. I'd say it is more of a correlation with the player rather than ownership. And that correlation would be the same I'd feel after placing a bet....I want the guy to do well.

I wouldn't play fantasy baseball with fictional players and I wouldn't place a bet on a generic boxer in blue trunks....I'd need to know enough about them beforehand to decide whether I wanted to tie myself to their future performance. You have to know something about the athlete to make that call.

Continuing down the page, and recognizing that responses may overlap since I'm responding in order:

Andy [23] and Yeargh [24]: If you're looking for a simple one word answer for why books of statistics or analysis are okay and fantasy games are not, you're not going to get it. The answer is that (a) the right of publicity is designed to protect people from commercial exploitation of their identity, not the right to protect people from being talked about, and (b) the first amendment protects information like statistics or analysis, but not mere use of someone else's identity for profit.

Mike Emeigh [25]: I should note that I think the Missouri court was wrong on the Tony Twist case. The case rested on what to me is an impermissible first amendment analysis about whether the character was essential to "Artistic or literary expression\" or not. If the court's overbroad interpretation were applied generally, then any fictional work in which a public figure appeared could risk violation. (In some states, the right of publicity survives death, so if you wrote a novel in which Elvis were a character, you could be sued.)

Kiko [27]: As for Win Shares, naked mathematical formulas are not copyrightable. (The name of the statistic itself could be a trademark, however.)

Yeargh [28]: All newspapers try to make money; if that were the only test, then they'd never be protected. That's simply not the entire test. The primary purpose of a newspaper or encyclopedia -- objectively, not subjectively -- is to disseminate information. First Amendment protection does not turn on the profit motive (although the issue of "fair use" sometimes does).

When I get a fantasy player, I feel more like I'm betting on his future results than I do feel like I own him. There might be a feeling of ownership of that individual that goes along with it, but it is the results that drive the outcome of the game, not the feeling of ownership. I'd say it is more of a correlation with the player rather than ownership. And that correlation would be the same I'd feel after placing a bet....I want the guy to do well.

Sure, but what you really "own" is the right to a particular string of statistics to take place in the future. That's fine and no one would have a problem with this.

MLBAM's problem is that CBC is going one step further, calling one set of statistics "Johan Santana" and another "Albert Pujols." MLBAM believes that it controls the right of how the names and likenesses of its players are used commercially.

The actual statistics don't even need to match what the players do in real life. They could be lottery numbers as far as MLBAM is concerned. Their point is that CBC shouldn't use the names of MLB players when basing a game on a particular set of numbers, whatever they may be.

MLBAM's problem is that CBC is going one step further, calling one set of statistics "Johan Santana" and another "Albert Pujols." MLBAM believes that it controls the right of how the names and likenesses of its players are used commercially.

What if the names were scrambled in some way? If it's Santana's name that's the issue, would masking his identity change anything?

(In some states, the right of publicity survives death, so if you wrote a novel in which Elvis were a character, you could be sued.)

I'm assuming that this is tongue in cheek, but if by some stretch of the imagination it isn't, why isn't E.L. Doctorow having his Ragtime royalties garnished by the estates of about a hundred different figures? In what states are we talking about here?

RoPu is larger than this [endorsement].

It should not be IMO.

You think I should be allowed to sell "David Ortiz lunchboxes"* without paying him for the use of his name?

*with note: this product not specifically endorsed by David Ortiz

??? - There is no right to publicity in a stock symbol that identifies a corporation either. In fact, there is unlikely any trademark either. You can't even give dilution theory a whirl in that scenario.

The hypothetical is not a legal one, but a policy question. It need not be Coke so much as any specific stock symbol, a unique identifier for a specific corporation. The stock trading game derives its value from the real-life events that effect the stocks traded in the game.

If there is a moral issue involved with profitting off of the name of an entity, it should not matter much if it is a human being or a corporation. Unless you're saying it not an "unjust enrichment" issue and instead has to do with some special value of a human being's name.

Legally, this appears to be in that grey area (if it wasn't, we'd know the answer already) between established acceptable and unacceptable use of a person's name. I would think that means the decision will end up being a "what should the law be" ruling with a justification legally to tie it to one end or the other. If MLB wins, it's more like a board game. If CBC wins, it's more like a stat service.

What if the names were scrambled in some way? If it's Santana's name that's the issue, would masking his identity change anything?

I'm not 100% sure, but I believe that if it could be done in a way in which no one could reasonably connect a set of statistics with a particular MLB player, it would be ok.

IOW, if CBC used made up names like "Wayne Alexander," that's one thing, but a name like "Malbert Spujols" is another.

More... I'm glad to see Backlasher has jumped into this thread and answered many of the questions that I'm also answering, but that won't stop me from opening my mouth...

Andy [42]: What the fantasy games are doing differently is, well, running games. They're not stats services. If they were, they'd be safe. If all you're doing is printing a player's stat line, and allowing people to download it, you're merely providing information. Once you construct the whole edifice of a fantasy game -- run an auction, bid on these players, own them, trade them, etc. -- that's where you run into trouble.

JPWF13 [44]: I dislike TPTB at MLB as much as anybody, but MLB (or MLBAM) is the plaintiff because it licensed these rights from the players. It is the players, not MLB, that stand to lose big if this decision stands. So criticizing MLB's greed here is misplaced.

Zonk [47]: You're acting like you're cleverly getting around something with your idea, but there's nothing sneaky about it. If the company merely sells stats, it is perfectly legal. If one writes a program to compile stats, it is perfectly legal. If you use those stats in a private game among your friends, it is perfectly legal. Nobody is trying to stop any of that. That is how fantasy baseball used to operate, until companies realized they could make money off of running the leagues themselves.

Yeargh [49]: Saying that it is "part of a broader trend" is literary analysis, not legal analysis. One can certainly construct a narrative in which what you say is true. But the court here is not being asked to rule on a "trend." It is not being asked to rule on the copyright term. It is not being asked to rule on the Tony Twist case -- which, as I've said, I think was wrongly decided. It is asked to rule about this specific right of publicity question. (And while the Tony Twist case was overbroad, the Chipper Jones hypo you cite is not even in question. It's protected speech.)

I happen to think some IP law is overbroad, besides the Tony Twist case. The Vanna White ruling was a joke. Business method patents need to be scaled way way back. Half of the keyword advertising trademark cases are wrong. But this case is this case, not any of those cases.

Backlasher [53]: Ah, now we get to the first place where we disagree. You write:

MO is pretty lax and was forum shopped by the fantasy sports providers.

While one assumes that any competent plaintiff looks at state law before it chooses its forum, I think the choice here is explained better by the fact that CBC is a Missouri corporation.

You see how this gets very metaphysical, though. I can bet $25 that Santana will win 20 games, but I can't bet $25 that Santana and 24 other guys will do better than the 25 guys someone else picked, because that would be creating a "fictional Johan Santana" who plays for my fictional "team." That's, at the least, awfully abstract. It's the same damn Santana (I don't have to tell the bookie that I'd like to bet #57 for the Twins will win 20... do I?), and you're kind of making a psychosocial summary of how people perceive the game they're playing that may or may not be accurate.

If the company merely sells stats, it is perfectly legal. If one writes a program to compile stats, it is perfectly legal. If you use those stats in a private game among your friends, it is perfectly legal. Nobody is trying to stop any of that. That is how fantasy baseball used to operate, until companies realized they could make money off of running the leagues themselves.

Can the company argue that the commercial benefit they are providing is merely collection and presentation? In essence, that they are selling the interface to draft, the collection of stats, the setting of categories, and the presentation of the results?

If I run a website that collects links related to the Mets, verifying that they are all current, and charge an access price for it, and I properly attribute the links to the originating sites, have I committed a tort against the linked sites?

You see how this gets very metaphysical, though. I can bet $25 that Santana will win 20 games, but I can't bet $25 that Santana and 24 other guys will do better than the 25 guys someone else picked, because that would be creating a "fictional Johan Santana" who plays for my fictional "team." That's, at the least, awfully abstract. It's the same damn Santana (I don't have to tell the bookie that I'd like to bet #57 for the Twins will win 20... do I?), and you're kind of making a psychosocial summary of how people perceive the game they're playing that may or may not be accurate.

In a fantasy game, what you obtain is a set of data statistics -- that's it. The staistics could be lottery numbers, temperatures, or anything else. CBC, however, is identifying a particular set of stats with the name of an MLB player -- in effect, allowing the name of the player to be used as a gamepiece representing a particular set of statistical data thst is used in the game it sells to the public. They could call the set of data "Jeff Randolph" and no one would have a problem (except for, I suppose, anyone actually named "Jeff Randolph").

That's different then Vegas, in which you simply bet on the outcome itself.

Can the company argue that the commercial benefit they are providing is merely collection and presentation? In essence, that they are selling the interface to draft, the collection of stats, the setting of categories, and the presentation of the results?

They could argue that -- they probably are arguing that -- but MLBAM disagrees. That's one of the things at issue.

In fact, MLBAM is arguing that the game is all about names and that if the names weren't used, no one would care about these games. MLBAM argues that the appeal of these games is that people could feel as if they are owning and managing MLB players.

CBC, on the other hand, is arguing that the game is all about statistics and the name is only used to identify the statistics themselves.

Personally, I find problems with both arguments.

You think I should be allowed to sell "David Ortiz lunchboxes"* without paying him for the use of his name?

No. My point is that ROP should be similar, or maybe even equivalent to, trademark protection. Ortiz would be protected here b/c of the likelihood that consumers would think Ortiz endorsed this product.

Yeargh [49]: Saying that it is "part of a broader trend" is literary analysis, not legal analysis. One can certainly construct a narrative in which what you say is true. But the court here is not being asked to rule on a "trend." It is not being asked to rule on the copyright term. It is not being asked to rule on the Tony Twist case -- which, as I've said, I think was wrongly decided. It is asked to rule about this specific right of publicity question. (And while the Tony Twist case was overbroad, the Chipper Jones hypo you cite is not even in question. It's protected speech.)

This falls into the "no duh" category. I suppose "literary analysis" is supposed to be some sort of pejorative, but, as I've made clear, all I'm talking about is what I think the law should be from a public policy perspective. I'm well aware of what the court is being asked to rule on. But there are broader policy questions that I think are interesting and that Congress might need to address at some point.

District Attorney [63]:

I just don't see why "they're games" matters. I understand why "they're not news reports" matters, and that no one is challenging my ability to write a news story pointing out that Pujols has 40 HR. But what rationale is there for making further distinctions between non-"news" uses? And encyclopedias aren't news.

They're not "news" in the sense of current events. They're news in the sense of pure information.

dlf [79]:

I think BL has nicely framed the legal standards applicable. And I share some of his concern about corporations having the right to benefit from your identity. Where I differ from him is that I don't see the fantasy games or fantasy gamers as being driven by the identity of the players.

Well, of course it is; consider this: would anybody pay CDM if it were selling minor league fantasy baseball players, or high school fantasy baseball players? (Well, someone might; don't read my question overliterally. Would it kill the majority of CDM's business? Yes.)

Cardsfanboy [84]:

Imagine if you make a game where you draft actors and the value of your team is based upon the amount of money that the actors film grosses that year, would that be a violation of their right of publicity?

Well, yes. That would be pretty much exactly parallel to this situation. As for your comments about the "stats behind closed doors," you're still thinking about the stats rather than the people.

Backlasher [90]: This is the only place where we disagree: Baseball-reference's advertising model.

Andy [91]:

But again, how is a fantasy league profiting off of David Ortiz's "identity," as opposed to his statistics?

See my response to dlf. Nobody is buying ".300" or "40" from CDM. They're buying "David Ortiz" from CDM.

Zonk [98]: The only difference for you between Joe Shlabotnick and Derek Jeter (besides the fact that Joe Shlabotnick can field balls to his left) may be the availability of information about the latter, but I submit that you are quite unusual. Most people want to own real, major league players. Why do you think CDM filed this suit to begin with, rather than saving money on attorney's fees by starting up minor league fantasy ball?

No offense, David, but I really hope you catch up soon.

My point is that ROP should be similar, or maybe even equivalent to, trademark protection. Ortiz would be protected here b/c of the likelihood that consumers would think Ortiz endorsed this product.

MLBAM argues that under Missouri law, the only thing that matters is that the identity is used for commercial gain. It need not be used for endorsement purposes; all that needs to be done is attach the name to an object for the purpose of selling more of that object.

Whether MLBAM accurately states Missouri law, I don't know.

No offense, David, but I really hope you catch up soon.

No sh1t. I'm dying to know how E.L. Doctorow has any money left.

Court will give its ruling in 3-6 months. Look for excerpts of today's oral arguments later.

Almost caught up...

CrosbyBird [103]: I think MLBAM should win, and I think Motorola was correctly decided. That was a copyright case, not a right of publicity case, so the legal framework was different to begin with. And Motorola was selling news. As I've noted before, if CDM were only selling statistics, then I'd have a very different view of this case. (As would MLB; there are numerous stats companies, and they are not running into legal difficulties.)

CrosbyBird [111]:

If I sell a 'Baseball Award Trivia Game' with questions like "Who won the MVP award in MLB's 2004 season?" should I be expected to pay A-Rod (and the other three answer choices) for appropriating their likenesses? At what point do we just say these are facts that are in the public domain and don't deserve the protection of other intellectual property rights?

A trickier question. It starts to approach the line, but I would argue that it does not cross it. (I believe CDM actually raised the Trivial Pursuit/Jeopardy! issue in its arguments.) The more fact-centric the use of the information is, the stronger the case that the use is protected. CDM is really selling identities, not facts.

CrosbyBird [114]:

How is that different from a fantasy stock market game, where you own "fantasy Coke, and whatever that corporate entity does in real life, it does for your team"?

Well, one way it's different is that soft drinks, or even soft drink companies, do not possess a right of publicity. (There may or may not be a trademark claim, depending on how the game is structured.) Only people do.

District Attorney [126]: No, nobody thinks that encyclopedia makers are not interested in profit. That simply isn't the test. It's the purpose of the work, not the subjective motives of the user, that is the important factor. The purpose of an encyclopedia is to disseminate information; that is not the purpose of CDM.

If it's a right to publicity for the purpose of protecting people from being associated with things they might not endorse,

It's not, although obviously that's a motive. It's for the purpose of allowing people to control their own identities and not allow others to commercially exploit them. It doesn't matter if Cal Ripken really does drive Ford trucks and is proud of it and will tell anybody who will listen; Ford still can't put up a billboard saying, "Cal Ripken loves Ford trucks, so you should buy one."

and if he's not being associated with anything, then what argument does he have, other than the simple "I want"? Saying "it's his name, so only he can make money off it" asserts the conclusion before providing the logic.

His argument is "I want." You seem to be confusing the question, "Why should there be a right of publicity" with "What does the right of publicity encompass"?

My $0.02... take it or leave it...

Summary judgment will be upheld.

BL [141]:

Also, from my initial post. "Fair Use" is a concept in copyright law. "Fair Use" is read into trademark law. "Fair Use" has not expressly been read into MO RoPu law at any point (and most other states for that matter).

Fair use is usually broader than constitutionally protected speech. If fair use was an available defense to RoPu violation, then the game is entirely different.

While I am aware that few if any states explicitly bring the fair use concept into RoPu law, I think that it's implicit. (Fair use in copyright law, of course, also started as a common law doctrine before being codified.) It's in part a way of factoring in First Amendment considerations into the area of law in question.

You may call it a First Amendment defense rather than a Fair Use defense, but I think the underlying concept is the same: RoPu must be constrained in some respects.

That having been said, I think that it's all academic in this case; what CDM does is about as far from any conception of 'fair use' as one could get, if we assume that it would be a similar analysis as in copyright or trademark law. It's pure commercial use, purely for entertainment value, with no intrinsic social utility.


Craig in MN: You're right that there's no clear line between running a sports book which allows one to gamble on individual players and running a fantasy game. A line gets drawn somewhere, by the courts and/or legislature. Don't fall into the mistake some people in this thread (and elsewhere) want to make of thinking, "If I can't draw a clear line between two things on the margin, there can be no line at all anywhere and we must throw out the entire concept." Or, "If there's no good reason to draw a line in a particular place, then we can't do it." Legislators get paid to draw sometimes-arbitrary lines.

Law rarely works by coming up with 100% perfectly defined categories and labels and rules. You can start by trying to put something into a particular "box" and then seeing how the law treats that box, but it's only a starting point. There may be Platonic ideals of boxes, but in the real world of law it's done on a fuzzier basis than that. That's why we need judges and juries, rather than computers.

Maury -- In case you don't already have it, I just e-mailed you the mp3 of the oral argument.

While one assumes that any competent plaintiff looks at state law before it chooses its forum, I think the choice here is explained better by the fact that CBC is a Missouri corporation.

I think the point BL may have been making was that they chose to incorporate in Missouri because of their law, in the assumption that the matter might some day come to litigation. Sort of a pro-active piece of forum shopping. I don't know if that was their thought.

Oh, and I agree with you (I think) about the sponsorship scheme for our other favorite site. I don't know where SF lives, or where his server is, or what law would apply, but even under Mo. law, it is already questionable, and I don't know that it would be at all tenable in the event of ruling in favor of MLB, assuming that were applicable law.

Andy [157]:

I'm assuming that this is tongue in cheek, but if by some stretch of the imagination it isn't, why isn't E.L. Doctorow having his Ragtime royalties garnished by the estates of about a hundred different figures? In what states are we talking about here?

It's not at all tongue in cheek. I'm not familiar with the work (I've heard of it of course, but don't know it), but he isn't having his royalties garnished because (a) most states don't think it survives death, and (b) Tony Twist is an overbroad extension of RoPu law, and doesn't represent the law in any other state. Indeed, it's unlikely that even in Missouri, ELD would be in trouble; frankly, I think McFarlane lost primarily because people don't take comic books (er, "graphic novels") as serious literature, and therefore treated it more like the David Ortiz lunchbox than like a book. If it were in a "real" book, I think the Missouri courts would distinguish the case.

CrosbyBird [158]:

If there is a moral issue involved with profitting off of the name of an entity, it should not matter much if it is a human being or a corporation. Unless you're saying it not an "unjust enrichment" issue and instead has to do with some special value of a human being's name.

That's basically correct. One has to remember that although we often treat RoPu as analogous to trademark law, it isn't actually an outgrowth of trademark law, but an outgrowth of privacy law.

CrosbyBird [162]:

Can the company argue that the commercial benefit they are providing is merely collection and presentation? In essence, that they are selling the interface to draft, the collection of stats, the setting of categories, and the presentation of the results?

Well, as we say in lawyer school, you can argue anything you want; the real question is whether you can win. The question can't be answered in the abstract, but if by "the company" you mean can CDM prevail on that argument, I don't think so. The mere fact that X, Y, and Z are individually kosher does not mean that doing X, Y, and Z collectively is also kosher. And CDM is not "merely" collecting and presenting; it is running a league where people can draft specific individuals. If CDM were providing just the stats, or just the software to run a league (with the actual player names to come from the fantasy gamers), it would be a different story.

Yeargh [165]: No, "literary analysis" was not meant to be pejorative; I was just saying it was unhelpful in the context of this suit. You seemed to be saying that because there was such a trend, the court should factor that in when deciding this case. If you're not saying that, no problem. I have no quarrel with the claim that the states or, if absolutely necessary, Congress, should take a look at many IP-related issues, and should narrow the scope of much IP protection.

And there. Now I'm caught up.

I'm assuming that this is tongue in cheek, but if by some stretch of the imagination it isn't, why isn't E.L. Doctorow having his Ragtime royalties garnished by the estates of about a hundred different figures? In what states are we talking about here?

It's not at all tongue in cheek. I'm not familiar with the work (I've heard of it of course, but don't know it), but he isn't having his royalties garnished because (a) most states don't think it survives death, and (b) Tony Twist is an overbroad extension of RoPu law, and doesn't represent the law in any other state. Indeed, it's unlikely that even in Missouri, ELD would be in trouble; frankly, I think McFarlane lost primarily because people don't take comic books (er, "graphic novels") as serious literature, and therefore treated it more like the David Ortiz lunchbox than like a book. If it were in a "real" book, I think the Missouri courts would distinguish the case.

Well, Ragtime is a "real" book, and it has scores, if not hundreds of "real" characters interwoven into the plot. IOW it's exactly the sort of book that would make a laughingstock out of the state of Missouri if someone actually took such a silly law seriously and tried to sue Doctorow on the grounds that he hadn't asked permission to include these historical figures in his novel.

I can see it now: The Estate of Emma Goldman v. E.L. Doctorow.

BTW do you have any idea how this Missouri law ever came to pass? Were they trying to protect Ashcroft, Truman or Champ Clark from future mockery?

BTW do you have any idea how this Missouri law ever came to pass? Were they trying to protect Ashcroft, Truman or Champ Clark from future mockery?

It's not a "Missouri law" per se; it's the same right of publicity that most states recognize. It's the Missouri courts that recently decided to interpret it really broadly.

BTW do you have any idea how this Missouri law ever came to pass? Were they trying to protect Ashcroft, Truman or Champ Clark from future mockery?


Every state has some concept of RoPu. It arose out of the tort for the right to privacy. The idea that you should not have your name or likeness attached to endevors unless you want to do it. It has taken an economic bend especially in CA, which has lots of celebrities. TN extended it to dead people primarily because of the Elvis estate. What really sparked the dead person part of the various acts was the new CGI techniques (as in the Astaire commercial or Forest Gump) that integrates dead people as media characters.

I know of 13 states that have postmortem rights (CA, FL, IL, KY, IN, KY, OH, NV, TN, TX, WA, VA and OK.) Others may also have the rights, but I can't say I know all the states RoPu laws. In some cases, the right has to be claimed by express act (TN). In most cases, the right sunsets after so many post mortem years (10 -100) or can be claimed in perpetuity as long as the right is properly claimed and used (TN).

I'm not familiar enough with the work you mentioned, but there are multiple possibilities on lack of liability.

(1) No post mortem state has jurisdiction.
(2) The work was made b/4 the statutory creation of post mortem rights (they are not generally held at common law).
(3) I agree with Nieporent; I imagine a literary work is going to enjoy protected speech protection.
...

You're right that there's no clear line between running a sports book which allows one to gamble on individual players and running a fantasy game. A line gets drawn somewhere, by the courts and/or legislature.

I understand that theres going to be a point on the continuum where things change from being allowable to not allowable. And I'm not saying that since gamblers bet on players that fantasy games have to be allowable. I'm just saying that the two are remarkably similar, and that gambling is a common activity that it seems like no one has every thought to question in the same regard. It is the closest analogy I can think of to fantasy sports I would be surprised if the courts would eventually find one to be acceptable use and the other not acceptable use. They just seem too close to me.

Okay, I made it through 110 posts before skipping to the nd. I don't see anyone disagreeing with dJf and BL (and possibly other lawyers):

Re: Paying for David Ortiz (or Albert Pujols)
"No news articles discussing what "John Doe's" status is, no pictures of any MLB players, no logos or team names."

You say no one would pay for that. I am telling you they *will*.

It's called Dungeons and Dragons. It's also called Diamond Mind Baseball.

What? When you play historical leagues, most people have NEVER heard of Ski Mellilo, but you draft him and admire the beauty of his stats - but really, did Tom Tippett make him up? How do you know? Could Tippett slip in some fake role players? Damn right he could, and he'd play. Make him an Ex fielder, or having very few ABs (say 100), and he'll get lots of PT in many leagues.

A player *is* his hitting line - his stats. People don't know (outside of these walls) what Jimmie Foxx looked like. But they like his stats. Hank Greenberg? Mel Ott? Well, it's a three-letter crossword clue. If you sold a baseball game from 1930, Lefty O'Doul is a hero, and nbody is playing for his identity.

David Ortiz is the same way. We may be more familiar with his appearance, but we "own" Ortiz' stats, not Ortiz, and you know this by the fact that the instant he sucks, he's off the team. I cut Robinson Cano earlier this season. Did I draft Robinson Cano based on "owning Robinson Cano"? Sort of. I drafted a player BY ANY NAME that produced the stats I was expecting Cano to produce. But I have no attachment to Cano - I cut him as fast as he sucked.

All CBC needs is ANYONE to generate "real" stats. They (nor the fantasy players) care whether it is David Ortiz or Carlos Pena. They want a 1B who can produce an OPS of 1.074. And they'll start the no-name player right over Ortiz - the players' names are merely shorthand for "Player X that can be expected to produce such and such stats".

Yes, it does need to be attached to MLB, but that's really based on where the info is derived - but Webkinz will tell you people will attach this type of interest to anything that will reliably produce data, and something they can follow.

Frinstance, Jason Giambi got the crap dropped out of him all year, and probably isn't owned by any significant portion of fantasy players - he's still Jason Giambi, but if his stats suck, I don't care if he's God Almighty - you can't sell me Him.

The attachment is to MLB-generated stats, not to any particular player. David Ortiz coincides with "Boston Red Sox DH".

BTW do you have any idea how this Missouri law ever came to pass? Were they trying to protect Ashcroft, Truman or Champ Clark from future mockery?

I'm not familiar enough with the work you mentioned [E.L. Doctorow's Ragtime], but there are multiple possibilities on lack of liability.

(1) No post mortem state has jurisdiction.
(2) The work was made b/4 the statutory creation of post mortem rights (they are not generally held at common law).
(3) I agree with Nieporent; I imagine a literary work is going to enjoy protected speech protection.

But BL, look at David's response to my question, which would most definitely apply to Ragtime. I've underlined his germane sentences:

(In some states, the right of publicity survives death, so if you wrote a novel in which Elvis were a character, you could be sued.)

I'm assuming that this [Missouri law] is tongue in cheek, but if by some stretch of the imagination it isn't, why isn't E.L. Doctorow having his Ragtime royalties garnished by the estates of about a hundred different figures?

It's not at all tongue in cheek. I'm not familiar with the work (I've heard of it of course, but don't know it), but he isn't having his royalties garnished because (a) most states don't think it survives death, and (b) Tony Twist is an overbroad extension of RoPu law, and doesn't represent the law in any other state. Indeed, it's unlikely that even in Missouri, ELD would be in trouble; frankly, I think McFarlane lost primarily because people don't take comic books (er, "graphic novels") as serious literature, and therefore treated it more like the David Ortiz lunchbox than like a book. If it were in a "real" book, I think the Missouri courts would distinguish the case.

My interpretation of what David writes is that under Missouri law, Ragtime would be liable for damages (or at least have to obtain waivers from all the necessary estates), since many of the characters are "real" in the sense that they are given actual names of historical figures, and are supplied with dialogue that in fact would indeed be libelous (or at the very least more than a bit insulting) if there were no allowance for literary license.

Not being a lawyer, my instinctive reaction is that the whole idea of not allowing a novel to represent historical characters without "permission" from their descendents is absurd on its face. But David's remarks (the sentences that I underlined) seem to suggest otherwise. Is this a rare case of David misinterpreting the law, or is the law really that crazy? Or is this one of those laws that's enacted for deterrent value only, to be reserved for cases like the more seemingly plausible ones in this thread, and simply ignored in the case of works of imaginative fiction, even though it might technically apply?

And if your second point (the work was made b/4 the statutory creation of post mortem rights {they are not generally held at common law}).is crucial, does that really mean that while Ragtime (written in the early 70's) would be grandfathered in, no current historical novel with "real" characters could be published and / or distributed in the state of Missouri? Again, this flies so directly in the face of common sense that I simply can't believe it.

I'd just like to say that this thread has been excellent and very informative. I appreciate everyone's comments.

That said, what Dial says in 181 I very much agree with, and seems like a good arguement to make.

My interpretation of what David writes is that under Missouri law, Ragtime would be liable for damages

That is not my interpretation. In fact, I think I am in complete agreement with Nieporent. He can clarify if we disagree.

First, MO has not recognized the post mortem right to publicity. Tony Twist was living and breathing. Under MO law, I don't think there is a cause of action if the novel uses dead celebrities.

Second, I agree with David that if Spawn were a traditional novel, the Twist verdict may have been handled a bit differently. I don't think the court thinks there is much difference between a comic book and trading cards. (Although the facts in TCI were a bit different. They were holding Spawn nights at hockey games, selling Spawn hockey pucks, and Twist was losing work b/c people associated him with the Twistarelli character. Twist was facing some big time economic harm, and sometimes egregious facts can push law in a direction that it is not meant to go.)

Third, David (IMHI) and I are answering the question generically, not just about MO.

and are supplied with dialogue that in fact would indeed be libelous (or at the very least more than a bit insulting) if there were no allowance for literary license.

In the only SC case on RoPu, the court very expressly differentiates defamation from RoPu. RoPu does not extend the concept of slander or libel past a person's death in any jurisdiction. The depiction of the characters would unlikely matter for RoPu analysis provided that the depiction was readily identifyable as a real person.

no current historical novel with "real" characters could be published and / or distributed in the state of Missouri?

No, it does not mean that. All you know for certain is that if you use a living person's name in a comic book and other merchandizing in MO, it will be tortious. I don't think a dead person has a cause in MO, but technically its undecided.

In TN the analysis could change if that character had acquired post mortem rights (e.g. Elvis). There you probably can't sell Elvis comic books AND hockey pucks. I don't think you would have a problem introducing Elvis as a fictional character in a literary work, but I'd prefer to reserve judgement until I have actual facts of what specifically would be attempted by the creator.

Second, I agree with David that if Spawn were a traditional novel, the Twist verdict may have been handled a bit differently. I don't think the court thinks there is much difference between a comic book and trading cards. (Although the facts in TCI were a bit different. They were holding Spawn nights at hockey games, selling Spawn hockey pucks, and Twist was losing work b/c people associated him with the Twistarelli character. Twist was facing some big time economic harm, and sometimes egregious facts can push law in a direction that it is not meant to go.)

They should have made a Spawn Character called Jolly St. Patrick to be co-marketed along with the Rory Fitzpatrick for All-Star campaign. That would have been frakking awesome.

Chris:

What? When you play historical leagues, most people have NEVER heard of Ski Mellilo, but you draft him and admire the beauty of his stats - but really, did Tom Tippett make him up? How do you know?

Because Sean F. would never lie to us? You mean when YOU play historical leagues, Chris. I've got news for you: the number of people who want to draft Ski Mellilo wouldn't fill Wrigley Field, whereas millions of people play fantasy baseball.

The test is not whether you can find someone who cares more about the numbers than about the players. You can find some elementary school kid who will carry a lunchbox with a set of digits on it, too. But a lot more who will carry one with Derek Jeter's face. (But I don't want to make it seem as if we balance the two sides -- numbers and Jeter -- and if Jeter is more popular, he wins his case and if he's less popular, he loses. Not at all. The question is whether his face has value -- whether it induces some people to buy lunchboxes.)


Andy: you misunderstand my response, I think. I did not say that Ragtime would be liable for damages in Missouri. In fact, I'm quite sure that it would not be. What I said -- or what I mean, anyway -- is this: no state, including Missouri, would hold Doctorow liable. For the same reason, Todd McFarlane shouldn't have been liable either. What the court basically did was try to draw a distinction between Ragtime and Spawn. That distinction was based, it seems, more on the judge's lack of respect for the literary merits of Spawn than on any legally significant distinction. (I agree with BL that the surrounding circumstances made Twist's case more sympathetic, but I don't think they should have changed the outcome.)

A possible comp to this case might be the Maps to the Star's Homes sold in Hollywood. Addresses are just facts, it's the names attached to them that sex up the proceedings and provide the marketability of the compilation.

Thanks for the clarification(s), BL & David, but one last point:

IIRC Ragtime also had living characters in it (like Nixon) who were transposed by Doctorow into the early 20th century. If the Missouri law had been in effect in 1973, how would that have affected the novel?

IOW would Doctorow have had to get some sort of permission from Nixon (since he was then alive) to include him in Ragtime, or would the purely literary quality of the novel exempt him from such a silly requirement?

And would the Missouri law prevent a 21st century novelist from writing an imaginative work lampooning (or otherwise depicting) living figures? Beyond novels, what about Aaron Magruder's Boondocks, the comic strip that week after week lampooned Condaleezza Rice's alleged repressed horniness? Could Rice have sued Magruder in the state of Missouri? And is it remotely possible that even the most thoroughly bought legislator could have introduced such a law with that possible outcome in mind?

And my recollection of the Twist case was that Macfarlane was being an egregious asshat about the entire thing, which made the court take an extremely dim view of what he was doing.

For those interested, I have the audio of yesterday's proceedings online and provide a partial transcript of the most pointed exchange between Chief Judge James Luken, and lead counsel for the MLBPA, Virginia Seitz.

Analysis: Fantasy Stats Case Appeal Heard

That distinction was based, it seems, more on the judge's lack of respect for the literary merits of Spawn than on any legally significant distinction.

Isn't that precisely the sort of thinking we don't want judges to be making with regards to these sorts of cases? Or is that the point as to why you think it was wrongly decided?

This Judge Luken quote is what I'm ultimately hoping appears in the decision:

<quote>
“The only identification is identifying the statistics so that this group of evolving statistics for the second baseman can be followed.”

The name is only to identify the statistics. It’s not to steal the identity of the second baseman.”
</quote>

Well, as we say in lawyer school, you can argue anything you want; the real question is whether you can win. The question can't be answered in the abstract, but if by "the company" you mean can CDM prevail on that argument, I don't think so. The mere fact that X, Y, and Z are individually kosher does not mean that doing X, Y, and Z collectively is also kosher. And CDM is not "merely" collecting and presenting; it is running a league where people can draft specific individuals. If CDM were providing just the stats, or just the software to run a league (with the actual player names to come from the fantasy gamers), it would be a different story.

Does it make a difference where the commercial value comes into play?

I am in a Sportsline fantasy baseball league this year, and pretty much the reason I'm paying a league fee is for the features and convenience. Otherwise we'd just use Yahoo or even a paper version.

I think there's a very strong argument that the company is just selling an interface that filters data and presents it in a specified manner.

Before everyone went online to play fantasy baseball, you could hire a service that managed all transactions via snail-mail and sent out weekly reports. Why weren't these services, which are similar in the context of "player names attached to statistics" brought to court? Should they have been?

In a sharp exchange between Chief Judge James Luken and Seitz, Judge Luken said:

“So, now we have a limitation (referring to the use of associating a player to their statistics), and now I come around to, ‘This isn’t about statistics’ -- the basic war of the brief .

‘This is about names,” you say. ‘This is about statistics,’ they say.

Oral argument can be misleading- but this doesn't appear to be going well for the MLBAM and MPLPA

So you are saying that this collateral market can be monopolized by your clients. The statistics – the public statistics – cannot be marshaled and be used for another kind of game without your clients getting a share of the action.”

Seitz then replied:

“Those statistics can appear in newspapers. Those statistics can be published on websites. But what cannot be done is have a player identity – a name – be used as a game piece for identification.”

Judge Luken shot back:

“The only identification is identifying the statistics so that this group of evolving statistics for the second baseman can be followed.”

Seitz does get in a good comment later, but I think Luken clearly sees things from a POV favoarble to the way CBC presented its argument- ie: he sees it as a disguised attempt at gaining control over the stats rather than as a true Right of Publicity claim.
Unless the other judges on the panel are more receptive to MLB's POV they are not going to win this one.

Actually what I find most interesting about this thread is Dave's posts- I vehemently disagree with his politics and view of history- but he's bright guy- and his completely inability to even see CBC's position (not agree with, just see it) is really interfering with his arguments (which do have validity- obviously under the common law right of publicity the players have the right to exploit- or not exploit- their names and identities for commercial profit)

Fine, but if the law actually thinks encyclopedia makers are motivated more by the milk of human kindness than by money, then that's as bad as it thinking that baseball isn't interstate commerce.

This misses the whole point. There is a difference between reporting facts (as a newspaper or encyclopedia does) and creating a construct based on a player, then using that construct for the purpose of a game.

MLB might like this lawyering but I don't see this as an accurate statement. You are in fact creating a game construct then using reported facts to feed the system. You aren't creating any "construct" of the player. The player stats are facts. They're there. The game is then created to capitalize on whatever facts are of interest to the creator.

But the real point here that I believe is being missed is that fantasy baseball existed well before there was big business in stat compilation. There seems to be an underlying presumption that these companies somehow created a game. No, the game already existed. It used to be 8 guys in an apartment complex and their USA Today baseball weekly, with manual scoring. So..in fact..none of these companies are even creating a game construct, if you want to get really picayune about it. What they've done is utilize modern technology to capitalize on that market. "Hey, we'll do your scoring for you...for a price".

It's a form of content delivery, folks. Of course they want to make money off of it. Give me a break, that's standard free market stuff. Whether they make money from advertising, fees, etc, I don't believe any of this is at bar. By this absurd standard, then every web-based content delivery company is liable for infringing the publicity rights of the celebrities whose news they deliver through their portals.

I jumped into this thread pretty much completely convinced that this case was (or should be) a non-starter, that what was being purveyed by the fantasy leagues was pure statistical compilation, but I'm no longer of a single mind. It seems to me now that it's not just the statistical profiles of the players that are being used as chits in these games; it's also the expectation of their future accumulation, and that expectation is in part built on the personae of the players. Yes, the previous statistical record is a component of that expectation, but so is the fantasy gamer's perception of each actual player's personality. I've known guys who tried to put together an All-Scrappy White Guy kind of team or a roster of speedy guys not just because they thought it would help them win, but because it seemed cool to try to win that way.

Given two identical (or nearly identical) statistical profiles, the bigger name in real life is almost sure to get more attention in fantasy. If Derek Jetah and Jimbo Scrubeenie both hit .320 in similar playing time in 2006, Derek's still more likely to get drafted in 2007, and it's not just because his previous stats suggest that he'll be more likely to repeat his performance. And again given similar profiles, gamers tend to root for and draft their own hometown players. Doesn't this indicate that the identities are in play along with the numbers?

Does anyone know if the issue of the prospective nature of the stats being argued in the actual case? Is it legally relevant?

You're profiting off of his identity.

This is the worst kind of legal sophistry: rent-seeking behavior.

For those in BAM/PA's corner...

The test is whether right of publicity has been breached. I question whether a player is being used as advertisement any more than a player name in a paper is being used for financial gain.

The case extends the players' reach into what is deemed to be a collateral entertainment industry. As Judge Luken mentions, the player name is no more than a marker being used to identify the statistics associated to them. Why does that give MLB the right to marshal and profit from the use of stats?

Are players being harmed? Is this the same as a company placing an image of a player on a tee-shirt without permission? As mentioned by lead counsel for CBC, there has yet to be a single player affidavit saying that they have been harmed by fantasy baseball.

The whole case hinges on being able to separate stats from the individual that those stats are connected to. Stats -- in and of themselves -- are public domain. So, BAM/MLBPA's case hinges on publicity rights because they know darn good and well they'd have no case to stand on otherwise.

This is about working toward monopoly, which is bad for consumers.

From today's Biz of Baseball, a partial transcript between Seitz and the judge in the case:

“So, now we have a limitation (referring to the use of associating a player to their statistics), and now I come around to, ‘This isn’t about statistics’ -- the basic war of the brief .

‘This is about names,” you say. ‘This is about statistics,’ they say.

And I understand the practicality of the war because the statistics are in the public domain. And it seems to me, it’s clearly a use of public information to figure out that if you’re going to have an ongoing fantasy sports league over the life of a real professional sports league – clearly a collateral market – you have to have an opening set of statistics and evolving statistics that will allow competition and trades and so forth.

And so where do you get those statistics?

Well you can’t take the 1923 Philadelphia Athletics because that doesn’t evolve over a season. So you take these statistics that are in the public domain.

And as I translate the argument in this case.. ‘Well, we won’t argue with that (referring to the use of statistics without player association), but don’t you dare put a name next to those statistics.’

Well, of course that’s ridiculous.

Shockingly enough, Chief Judge James Luken seems to understand that this really is about a legal canard to swindle the public out of something it has had for decades, the simple facts of the box score.

It seems to me now that it's not just the statistical profiles of the players that are being used as chits in these games; it's also the expectation of their future accumulation, and that expectation is in part built on the personae of the players.

Why does this matter in the least? A player exists now; barring a crash into a Manhattan high rise, a heart attack, or retirement due to age or suckiness, he will continue to exist in the future, and presumably play; but the facts of his playing remain uncopyrightable facts.

[198] An argument made yesterday... has fantasy sports stopped players from becoming major leaguers? Or, have the players been negatively impacted in some way that is measurable?

Have newspapers profited from players being mentioned within them? Certainly. Is this a solid case for right of publicity? No.

Not even remotely, Maury. Not by a mile.