With regard to the Ragtime/Doctorow issue: As I read the decision of the Missouri Supreme Court, the real issue was not the existence or terms of the Right of Publicity -- it was the test to be used to determine when the attempt to exercise that right was barred by the application of the First Amendment.

There were two prior tests followed by most states that were more protective to First Amendment Rights. The Court rejected them, and adopted what it called the "predominant-use test":

If a product is being sold that predominantly exploits the commercial value of an individual's identity, that product should be held to violate the right of publicity and not be protected by the First Amendment, even if there is some "expressive" content in it that might qualify as "speech" in other circumstances. If, on the other hand, the predominant purpose of the product is to make an expressive comment on or about a celebrity, the expressive values could be given greater weight.

After McFarlane lost again at the trial court, the Missouri Court of Appeals added this gloss:

The thrust of the predominant use test is to distinguish between commercial exploitation and genuine expressive comment. See Lee, supra, at 500 (restating the test as "whether the publicity right is being exploited or the individual is being commented on.").

This test is, to my mind, a walking violation of the First Amendment. If you are selling something, by definition, you are exploiting it, regardless of whether it is a book or a t-shirt. So now you have to prove that you are making a sufficient commentary to be acceptable to the Court of Missouri? To date, no other State has adopted this test.

That being said, I don't see how Ragtime could fail this test. It is not like it was marketed based on the popularity of the characters, all of whom were essentially being "commented" on.

Thanks, Srul. It's an asinine law to begin with, but to apply it to a novel would be to enter the Twilight Zone.

Why is it a given that permission is needed for baseball cards but not for encyclopedias? It's basically the same information in different packaging.

To borrow Backlasher's method, here's a scale:

10) Book with names and stats
20) Book with pictures, names, and stats
30) Book with pictures of only certain players, plus names and stats of all players
40) Book with full-page pictures of select players, plus names and stats of all players
50) Book with full-page pictures, names, and stats of select players
60) Book with tear-out posters of select players, along with names and stats of those players
70) Book with tear-out posters of select players, stats on the back of the poster
80) Package of 10 random posters (or cards), all players available
90) Individual posters (or cards), all players available
100) Individual posters (or cards), select players available

Maybe the order could be adjusted some, but where does the line currently fall, according to general consensus of the law? What's the rationale for drawing the line there?

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.

No, the cause of action is declaratory and based on whether CDM's conduct violates the player's right to privacy. The test is whether there is a commercial use of the name or likeness as a symbol of identity, without permission, that is not otherwise protected speech. The speech is protected in MO jurisprudence if the weighing of the expressive and commercial speech leads to commercialization being the dominant form of expression. A commercial gain is not merely an advertisement.






With regard to the Ragtime/Doctorow issue: As I read the decision of the Missouri Supreme Court, the real issue was not the existence or terms of the Right of Publicity -- it was the test to be used to determine when the attempt to exercise that right was barred by the application of the First Amendment.


I agree.

To date, no other State has adopted this test.


MA is pretty close. It requires:

(1) Use must be commercial without P's consent; and
(2) Use must not be incidental.

Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 749-751 (1980). There appears to be a sliver of difference between "not incidental" and "predominate" in the jurisprudence of the two states. MA does not use a relatedness or transformative test, but while not expressly saying it, does weigh commercial versus expressive.

Incidental would expressly allow such things as "sociological commentary". Id. It would allow things such as the use of stock photographers where the person is not the predominate source of the photograph. Morrell v. Forbes, Inc., 603 F. Supp. 1305, 1307 (D. Mass. 1985).


The big thing with Twist is that McFarland really seemed to capatilize on the association to the celebrity. He marketed the connection with specialized events, and told his fans he would continue associating characters to NHL personalities. Moreover, I agree with David that the MO supreme court viewed a "comic book" as a form of merchandizing rather than literature, biography or social commentary. (as compared to the Appeals court that went out of its way to laud comics).

If you look to other states jurisprudence, you find a similar analysis. Cher on the cover of your magazine with very little Cher content gets you hit. A story about Cher gets you a free pass, and if its a feature, you can put her on the cover. IIRC, that is NY jurisprudence and while its a relatedness test there is still some balancing that is going on.

If you listen to the audio, that is consistent with the single appelate judge's harangue. If these players are public figures, is the providing of their stats incidental, and the name in place only to make the stats relevant. Further is the providing of these services in a game format the type of expression that we should generally encourage.

I see nothing very different or novel about MO application. The language phrases things differently, but relying solely on TCI without examining the other jurisprudence (which is going to be present in the amicae briefs) is always going to cause a problem. When you only have a landmark case, you are just going to get a hazy articulation of the rule. The explanation of the rule is going to come in further jurisprudence.

The problem that Nieporent aptly pointed out is the Magistrate Judge did not write a very good opinion. Her articulation offers little explanation, only conclusion, and those conclusions are not tenable under the current law. The appeals court has room to find for CDM; however, they would need to explain what is meant by some of those broad conclusions and probably phrase them differently b/c as David has pointed out, the rule as stated by prior decision does not rely on photographic representation, and does allow for the use of a name. That can be a factor in determining the outcome, but cannot be the rule unless it overrules other decisions.

A CDM ruling is not going to depend on "copyrighting stats", especially since that is not at issue. What it depends on is for the court to find that purveyors of these games are providing enough of a public good that their speech is protected, and that good predominates the commercialization they are obtaining.

I do not see any of these reductions in jurisprudence. If a novelist decides to make Chipper Jones the chief protaganist in a series of books, and sells accompanying Chipper Jones merchandise, then this is conduct that should not be allowed. Biographies, journalistic stories, pictures where Chipper is in the background, and even fictional works that use Chipper in the ensemble would never pose a problem.

The second test is not "Is there any commercialization"; rather its "how much commercialization is occuring. That seems the same as NY, MA, CA, and most other states.

As for Ragtime, the court expressly states, "And yet, respondents agree (perhaps to avoid a defamation claim) that the use was not a parody or other expressive comment or a fictionalized account of the real Twist." That would seem to imply that a fictionalization does change the bar somewhat on how the test should be applied.

but where does the line currently fall, according to general consensus of the law? What's the rationale for drawing the line there?


Somewhere between 20 and 80. 30-50 would most likely be allowable unless the book marketed which players pictures appear. If you say, "[item] of Reggie Jackson included" you start having a problem in 30-50. 60 and 70 are very grey, but would have lots of risk.

The rationale depends on which test you are using. There are three different tests that are used. This is brief, but you can read other decisions for more background.

Relatedness - Is the use related to the work, or is the use just trying to draw attention to the work.

Transformative - Does the use take things in such a novel direction that the commercial aspects are transformed into a something that should be protected.

Balancing (the Lee/MO test) - Weigh the commercial aspect and the expressive aspect and see whether the use is predominantly commercial or predominantly expressive.

In your example, the first few items 1-60, the pictures and names are related to the general purpose of the biographical information. The biographical information dominates the pictures, therefore the use is transformed and more expressive than commercial. It passes all three tests.

In the latter examples, the fame of the celebrity is beginning to be more important. People are likely to buy the book just to get the pictures of the famous people. The biographical material alone does not transform the use. The use of their name and pictures is to draw people to the work, and the commercial advantage of the fame begins to outweigh the expressive purpose of putting them in the biography.

Whichever test you use, the analysis ends up being near the same.

Andy,

Let me put this in perspective. I hope this helps. Lets consider two different types of "fiction". There is what I'll call "classic literature", and there is what I'll call "franchise literature."

Classic literature is what you appear to describe with Opie. I think it even includes such things as the Rabbit X novels. You have a character in a book that does certain actions and deeds. You may within some limits regurgitate that character in other books. (While its greyer, this probably also includes modern heroes that Clancy, et. al. re-use, but see the description below where you cross the line).

Franchise literature would be something like Star Trek. You have an ensemble of characters. They repeat through multiple works. They become very popular and you start exploiting them in multiple forms of media. AND YOU START MERCHANDISING AROUND THE FAME OF THOSE CHARACTERS.

You are free to do either of these things. However, if you have franchise literature and what you are merchandizing is the name and likeness of real people, you have a problem. In the opinion of the MO court, McFarland did this. He not only used Twist, he drew attention to Spawn because of the connection to Twist AND he sold merchandise based on Twist.

If Capt. James Tiberius Kirk was based on a real famous naval captain named John Tiberius Kirk; Roddenberry starts having a problem when those action figures hit the stores.

Does this make more sense?

It sounded to me from the oral arguments that the judges were leaning against MLB. They were supplying the other guy's arguments for him, while they grilled MLB.

The MLB argument actually comes down to one sentence, doesn't it? According to the previous case, you can't use someone's name in your product unless the product is making an "expressive" statement about that person. If that's all there is to it, then there isn't even really an argument. A fantasy game has zero expressive element. It's not anything like a book at all. It's not making any kind of statement whatsoever about the man we call Albert Pujols.

I guess my question is, if that is a wackadoo test -- and I think it is -- and upholding it would lead to other courts across the country ruling similarly -- and it was at least stated here that that was likely -- does it have to end up becoming the law of the land just because one court in Missouri decided it? A court IMHO might well be looking for a perhaps not-quite-on-point distinction so that it can get out of perpetuating that dumbass decision (I know they don't like to actually overrule things.)

BTW, MLB denied that there is anywhere (legally) offering bets on individual player's performances. I dunno if that's actually true, I'm not a gambler, but that's what they said.

I guess my question is, if that is a wackadoo test -- and I think it is -- and upholding it would lead to other courts across the country ruling similarly -- and it was at least stated here that that was likely -- does it have to end up becoming the law of the land just because one court in Missouri decided it?

Regardless of what this decision is, the law remains the same. What would change is the interpretation of the law.

Courts are big on precedent, so this case would set a precedent for the interpretation of the law--but precedent is not irreversible, as I was telling Oliver Brown just the other day.

According to the previous case, you can't use someone's name in your product unless the product is making an "expressive" statement about that person.

The expressive statement is the stat line. For instance, if the newspaper prints the exact same stat line, it is reporting news, and that is the expressive conduct.

CDM is definately: (1) making expressive statements and (2) commercializing based on the players. What MO law requires is the weighing of those two things.

... wackadoo

Per my earlier post, there is nothing wackadoo at all about RoPu jurisprudence or the MO application of RoPu. The problem here is that very often, the test is being stated incorrectly. Its not:

(1) If there is any commercialization, you lose;
(2) If there is no expression of additional information beyond the stat line, you lose;
(3) If there is advertising, you lose (see other notes);
(4) If anyone buys the service for a reason other than the personality of the players; you win; or
(5) If anyone buys the service for a reason other than the stat line, you lose.

Its a balancing of the amount of commercialization with the amount of expression. You can formulate as a relatedness test, a transformation test, a predominance test, or an incidental test. So far, the analysis has been the same in each jurisdiction.

And each time novel facts are brought in an action, the court will narrow the bounds of permissive conduct just like doing newtonian convergence to solve an algorithm.

A real problem here is that you have many misarticulations on the explanation of the rule. And you need some understanding of the current rule and how its evolved to even be able to discuss "what the law should be"

Because if you do not, and say the law should be "advertising." you haven't advanced anything. Instead, you have set the law back about 25 years. That is because there still is an interpretive question about what "advertising" means. If you put someone on the cover of your magazine and do not write any story about them, is it advertising? If you do the same and write four lines of copy, is it advertising?

And you don't draft "what the law should be" by having the drafter sit in judgment of multiple hypotheticals that can never be exhausted and try to write them all into a novelesque version of code. Instead, you have the evolution of a rule that applies to all situations.

Courts had to answer the exact question about a magazine many years ago. To answer that question, you need some test, and that is how these tests where born. So if you try to say "advertising", all you are really doing is forcing the court to re-interpret all the same things that have already been answered.

Moreover, this court does not have the authority to overrule the Supreme Court of MO on MO law. They are obliged to use the predominance test. (althought this court could declare the MO test to be unconstitutional, but if it takes this drastic step, it should certify a question on RoPu back to the MO SC).

What happens here has no precedential authority over any other state. What it does have is persuasiveness and some general idea about which way the political wind is blowing.

If the court articulates a holding where the analysis is consistent under a relatedness, transformative, or comparative test, then many states may follow this direction. NY and CA would still be wild cards. Neither state wants to anger that large economic block of actors. I doubt they want to see the door openned to a situation where Milton Bradley or Parker Brothers produces the "Scandal" board game with player pieces Paris Hilton, Lindsey Lohan, Nicole Ritchie, Sean Penn, Matthew McConaugh, Martin Lawrence, etc.

From Biz of Baseball:

In summarizing his points later, Judge Luken said, “Since this is completely tangential to Major League Baseball, and the success of Major League Baseball, I don’t understand where that success and that identity, gives the players – at least I’m having trouble seeing – how it gives the players the right to monopolize an entirely separate entertainment industry.”

Its a balancing of the amount of commercialization with the amount of expression.

Okay. So I guess I need these terms defined. (I keep asking questions and writing "summaries" to make sure I understand the situation, not to "challenge" anybody -- hope this is clear.)

Does "amount of commercialization" mean "amount to which the product's appeal hinges on the use of the name"? If so, that would certainly be very high; although it's been argued here that a similar number of people would still play the game if they had (let me check my spam folder to get a name...) "Jong Hoon Lehman" playing 1B for them and hitting .300 with 40 HR instead of "David Ortiz," I really don't think so. Is that the definition?

Similarly, what does "amount of expression" mean in this context? What does "expression" mean when we're talking about something that is essentially a stat service? Once MLB concedes that it's not challenging "fantasy expert" articles or whatever literary content they might have on the site, they don't have anything "creative" left to cite. All they've got is stat lines. What would their argument even be that they're engaged in "expression"? Or, is my not being able to answer that the point?

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

Yes, MLBAM includes in their brief the exact facts you articulate in your first paragraph, but use "clutch" and "hustle" in place of scrappy. They further argue that players or not providing, nor is CDM providing past stats; they are buying the prospect of future accomplishment by the player, which intrinsically ties the meaning of the game to the player.



Is it legally relevant?

We will see. That is why I thought Craig's analogy is appropriate. In fact, MLBAM apparently argues that prospect bets on players are not in existence. IMHO, MLBAM makes a good argument that the prospectiveness of the performance gives greater weight to the fact that MLB players are game pieces. IMHO, it is not their strongest argument.

This argument also does add a little tangent. I went and re-checked CDM's marketing. If they had said, "Want to own David Ortiz, come play CDM fantasy baseball", it would IMHO push the argument further toward MLBAM. They wisely do not do this. (Which is why I think bb-ref can be legally distinguishable from this case regardless of the outcome).

However, its also clear they don't just advertise statistical compilation services or just automate pen and paper methods. They are selling the right to join leagues they organize, administer, and even reward.

For instance, they have a traditional league, but they also offer a league that has a $10,000 cash prize. How that is not prospect wagering is beyond me. In fact, I could see the DOJ starting to have interest, but the problem is now if they act, they are going to look like MLB lapdogs. So the politics don't add up real well.


As for Judge Luken, he is just wrong. A decision against CDM does not preclude or create a monopoly on fantasy baseball. In fact, on page one, zonk describes methods where fantasy baseball can legally persist and not be violative of RoPu. People can still sell software to aggregate stats or perform drafts. People can still charge service fees to administer leagues. People can still offer news services about players. But if they try to create their own game and use players as game pieces, then you would have a problem.

What the players would have is not a monopoly on fantasy baseball, or on the gaming of fantasy baseball, they would have the legal monopoly they have always had, a right to control the commercialization of their own name.

In fact, zonks scenario is not merely semantic, it is the preferred outcome. No force can stop individuals from gaming. No company can just wantonly usurp names for their own commercial purposes. It also decentralizes and disperses the economics of the industry out of the hands of scoundrels. But most important, it does not erode or reduce the individual right of publicity, but it takes a major bite out of the ass of those that think that everything in the world is free game for them to exploit, and promises they make can be ignored just because they can afford attorneys to bring an action in their home court room.

Does "amount of commercialization" mean "amount to which the product's appeal hinges on the use of the name"?

Pretty close, yes.

Similarly, what does "amount of expression" mean in this context?

The stat lines and probably the public benefit of having a service that aggregates these stat lines in a utilitarian manner.

There has been some abstraction by people about what fantasy services actually do, but in the end its not raw numbers. Its data that is sorted, aggregated, and tabulated for the participants. That is actually a point in favor of CDM/CBC.

For instance, if you want to write a "Top 10 list of LF"; your expression of that Top 10 is a beneficial form of expression. If you want to do, "Top 10 WARP LF"; the same is true. If somebody wants to send you a list of 10 players and ask you to provide weekly reports on their WARP factor, DIPS, and MLE divergence--- I might question the utility--- but its still considered to be valid expression.

That is why, I think there is no contest if CDM just offered a web interface for you to manage your own fantasy league. Start adding a draft, you are probably still ok, but you start inching closer to it being about the players. Start saying that you are selling a game, and the draw to the game is the right to own players, you have moved close to the line. Start advertising that you can "own David Ortiz", you are getting in bad territory. Call it David Ortiz Fantasy Baseball, you are sunk under multiple law.

And that is MLBAM's argument--yeah, you can do a lot of things you do, but once you start selling a game where the players are game pieces you have crossed the line. Then the draw of owning those players and their inclusion in the game, outweighs whatever rules, stats, or other publically and legally acceptable things that you are doing.

CrosbyBird [191]:

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?

Depending on what they were actually doing, perhaps they should have been. Or perhaps they were paying the MLBPA. Remember, many of the large companies -- including CDM -- were, until recently.


JPWF13: I'm curious what I wrote that makes you think I don't "see" CDM's position. If I'm dismissive of the arguments in favor of CDM, it's because we've had very long discussions on this before, and I'm not seeing anything new in this thread. (Incidentally, when those discussions began, I felt that MLB didn't have a leg to stand on; it was only after long exchanges and after I researched the caselaw that I decided that MLB was right.) Plus, there don't really seem to be any lawyers here making the CDM case. I don't mean that to come out snobby; what I think I mean is that it seems to me people are making general policy preference arguments rather than specific legal arguments.

And since I bring it up: what I'd like to hear is someone who support's CDM's position explain how he'd salvage the MLBPA's rights with respect to Topps, if he thinks that the dissemination of stats defeats right of publicity arguments. (Or argue that Topps shouldn't have to pay, either.)


Mushmouth [193]: Nobody thinks CDM "invented" fantasy baseball. That isn't the issue here at all. They didn't "invent" the concept of putting athletes faces on products, either, but if they start selling t-shirts with Derek Jeter's picture on them, I'm confident they'll lose.

Maury [196]:

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?

First, it isn't "MLB." It's the players themselves. It's somewhat misleading to act as if it's the big evil MLB who suffers if the lower court decision is upheld, rather than the individual players.

Second, do you feel the same about baseball cards -- that the names are just "markers"? How about video games that represent actual teams? Are the names just "markers"? Should Playstation MLB 2007 (or whatever the kids are playing these days) have to pay the players before it can use their names?

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.

This is simply disingenuous. They don't need to submit "affidavits" in support of such a position, so why would there be any? Are players being harmed? Yes, of course. The harm is, yes, the same as a company placing an image of a player on a t-shirt: loss of income.

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

Well, that argument ought to be made in an antitrust context, not this one. But it's not a very good argument; intellectual property (which is, in this type of case, analogous to the right of publicity) regularly involves "monopoly." Derek Jeter has a "monopoly" on Derek Jeter t-shirts, too. Perhaps this is an argument for mandatory licensing; it's not an argument for pretending that the right of publicity doesn't exist.

And since I bring it up: what I'd like to hear is someone who support's CDM's position explain how he'd salvage the MLBPA's rights with respect to Topps, if he thinks that the dissemination of stats defeats right of publicity arguments. (Or argue that Topps shouldn't have to pay, either.)

I don't think the two are equivalent.

The commercial advantage comes from the features, not the names of the players. It is not as if a free fantasy service is distinguished by a lack of access to player names.

That's somewhat similar to what I suggested before: CBC is not profiting off of the player's identities, but off of the presentation of statistical data that is in the public domain.

Taking statistical data in the public domain and organizing it so as to provide a fantasy game is transformative, simply reproducing the data with a picture on one side and stats on the other is less so. I think there is a very clear difference between "move your Derek Jeter pawn around the board" and "draft/trade/drop/pickup Derek Jeter's performance."

Somewhere between the extremes of no right of publicity and an absolute right of publicity is an arbitrary line. I happen to think the "Derek Jeter pawn" (commercial value tied up heavily in use of the name) and baseball cards (very minor transformative element) fall on the "bad side" of the line, and fantasy baseball (use of name required as identifier, not significant commercial value from the name as opposed to the presentation, highly transformative) is on the "good side."

I recognize my limited understanding of the law in question, particularly Missouri's law. But I think that's not merely a policy argument.

David wrote:

First, it isn't "MLB." It's the players themselves. It's somewhat misleading to act as if it's the big evil MLB who suffers if the lower court decision is upheld, rather than the individual players.

Second, do you feel the same about baseball cards -- that the names are just "markers"? How about video games that represent actual teams? Are the names just "markers"? Should Playstation MLB 2007 (or whatever the kids are playing these days) have to pay the players before it can use their names?

The MLBPA is representing -- taking the lead in the appeal -- but MLBAM is involved, as the two came to the joint agreement. This is -- by extension -- MLB as an industry placing licenses and fees to the use of online content. As their press released read at the time, "It provides MLBAM the exclusive rights to use, and to sublicense to others, Major League baseball player group rights for the development and creation of on-line games, all other online content, including fantasy baseball and interactive games, as well as all wireless applications including cell-phone enabled games."

As to your second point, if there is intent by CDM to market particular player names or likenesses, then there would be some correlation to your argument. If Derek Jeter is on the front of a video game or his likeness is on a card, then the discussion shifts.

I'm not discounting your argument in-total. I think that there are merits to the discussion and I'm hopeful that no matter the outcome of the appeal that the judgment has clear language so that further appeals have case law that better defines the dissemination of statistics in relationship to players in the context we're observing.

Back to the discussion at hand...

Let's say Sean charged for Baseball-Reference... Would he be in violation of the Missouri definition of Right of Publicity? I think much hinges on the cash prize elements, etc. of fantasy games.

Lastly, BAM would have been better served by not trying to sell us all on the "we're limiting the number of licenses to provide better quality to the consumer." This seems to get back to the monopoly aspects. If there are only two licenses granted at $2 million a year, would that promote better games for consumers? The comments by Judge Luken of the agreement moving control by MLB as an industry into a collateral industry has merit, IMO.

Taking statistical data in the public domain and organizing it so as to provide a fantasy game is transformative, simply reproducing the data with a picture on one side and stats on the other is less so. I think there is a very clear difference between "move your Derek Jeter pawn around the board" and "draft/trade/drop/pickup Derek Jeter's performance."


The problem is that you are moving your Derek Jeter piece around the board (or your roster). The stats are the dice that provides the semi-randomized outcome that is mostly external to your control. That is why the "service" is a "game". However, its similar to an RPG style game where the dice themselves are loaded based on the ability to forecast the performance of the player. Start charging an entry fee and give away prizes for the best performance, I don't see where it is legally distinguishable from poker, prospect betting, or gaming that is classifed as gambling.

Let's bring Dial's scenario in the mix. Let's say that people will play a baseball RPG that is automated off of pen and paper. No one would have a problem with that at all. In fact, you could base player pieces on architypes of existing players. You could have a clutch, high average shortstop. Start making him look like Derek Jeter and name him Derek Jeter, you encounter problems.

If you are inclined to use the CA test instead of the MO test, you have a real problem seeing transformation. You know have Derek Jeter with the background of Derek Jeter doing things the Derek Jeter does and producing results the exact same as Derek Jeter. You have transformation if you put Derek Jeter in a Dungeons and Dragons game, make him a lawful good paladin, and have him go on quests for they eye of algomorah. You probably don't have a problem with that, until you start marketing that game to baseball fans because Derek Jeter is a character and sell merchandizing featuring the Derek Jeter character.

But in a balancing scenario, you are marketing the right to own Derek Jeter to baseball fans, and having your Derek Jeter game piece perform the exact same as Derek Jeter. Your target audience is people that will recognize Derek Jeter as Derek Jeter, and play to be able to own Derek Jeter doing what Derek Jeter does.

But even if your argument is correct that showing the stat line transforms Derek Jeter into something else, that would not legally distinguish fantasy baseball from EA Sports latest baseball video game.

Based on your criteria, the transformation is the exact same. In fact, the only differentiation would be the cartoon depiction of Jeter, which is legally irrelevant under the current jurisprudence.

If there are only two licenses granted at $2 million a year, would that promote better games for consumers?

To better clarify, there are more than two licenses granted now. My question was in terms of the hypothetical.

If Derek Jeter is on the front of a video game or his likeness is on a card, then the discussion shifts.


No, most likely there is no discussion at all. However, the use of photographs is not the test. The use of a name recognized as the identity of a player is legally cognizable cause of action.

Let's say Sean charged for Baseball-Reference... Would he be in violation of the Missouri definition of Right of Publicity?

No, that would be no different that Baseball America charging for online access. BB-refs potential liability is because they advertise "sponsorship" of player pages, and people base that sponsorship on connection to the player. His charging a fee for the presentation of statistical compilations and other biographical material would be and always has been safe.

I think much hinges on the cash prize elements, etc. of fantasy games.


No, and in fact, none of the lawyers on the case deal with that at all. The offering of cash prizes moves the activity closer to being interstate gambling; it does not read on RoPu very much, if at all.

Lastly, BAM would have been better served by not trying to sell us all on the "we're limiting the number of licenses to provide better quality to the consumer." This seems to get back to the monopoly aspects. If there are only two licenses granted at $2 million a year, would that promote better games for consumers? The comments by Judge Luken of the agreement moving control by MLB as an industry into a collateral industry has merit, IMO.


No and no. There is no antitrust count, and if there were, it would be because the players became a cartel before selling their rights. Derek Jeter has a legal monopoly on the use of his name in commercialization. David Ortiz has a legal monopoly on the use of his name in commercialization. That is the RoPu right. All of those players can individually influence the economics of fantasy games, but none can monopolize it. Their union agreement which consolidates all those rights into a cartel would be subject to a decent antitrust discussion. The licensing of those rights to uses in a single multi-billion dollar industry to a company that owns other collateral rights necessary for that industry would make a decent antitrust discussion. How that entity chooses to license those rights would make a decent antitrust discussion. However, antitrust is not an issue in this case. (and we had portions of that discussion in the first wave of threads)

And as David pointed out, there is still a MLBPA monopoly on player T-Shirts. Is the judge going to undo that monopoly too. And after he undoes all those monopolies, is their any RoPu left.

As a policy matter, I have no real problem with the people that say "I want"; but the "I want" needs to done in a legally meaningful way.

As for the quality control piece, MLBAM must do that. They must show they have an enforcable right. If not, their interest is subject to obliteration on other "technical" grounds. There would not be much of a problem in borrowing from trademark law and saying MLBAM's rights are void as an assignment in gross without an enforcement and preservation of that right. The right inures individually to Jeter, et. al. MLBPA must do something to have interest in the assignment or agency of that right. MLBAM must do something to have an interest in the assignments of those rights. In TM law, quality control is an absolute necessity---that is why that argument appears.

I don't discount the arguments of some. I'm sure that MLB has a profit motive on peripherary aspects to the actual game of major league baseball. I have no interest in making them richer.

Politically, they know that they can only push the right so far. At some point, they lose the PR battle, and the court will start importing other law and trying to find a reason for them to lose. One would think that is on the other side of the line of a dispute created by a multi-million dollar company that starts a lawsuit themselves after they decide they are going to breach the covenants they agreed to. But they were wrong, and I was wrong. CDM has been successful on the PR front. They have most of the country believing this is about "copyrighting stats." CDM has naive members of the journalistic community actually writing incorrect information on their coverage of the controversy. MLB has hit their political wall. And they have judges importing law that is not at issue in this case.

When that happens, you have to insulate yourself from judges importing other non-applicable law just to find a way for you to lose. You also have to build your case for other possible appeals or differentiations. Because there is one more possible battleground for this case. Moreover, most everyone paying attention is "rooting for a side" rather than having an interest in the jurisprudence. People view wins and losses just like sporting contests. If CDM wins, some numbnuts would believe they could call their game "Derek Jeter Fantasy Baseball", other persons would believe this gives them the right to sell Derek Jeter action figures based on the fantasy game (in fact under CrosbyBird's test, they probably could as they have a transformative use).

You have to throw the whole thing at the panel because you don't want one decision spinning the whole jurisprudence on his ear because of a legally irrelevant issue.

And since I bring it up: what I'd like to hear is someone who support's CDM's position explain how he'd salvage the MLBPA's rights with respect to Topps, if he thinks that the dissemination of stats defeats right of publicity arguments.

This is a fair question. My distinction would be that you could literally run a fantasy game with just the names and stats, whereas nobody would buy a baseball card that didn't identify the player any more specifically than that... but apparently that doesn't work under the law. Honestly, what I don't get -- and I'm beginning to understand that it is in fact the law, but I just don't grok it -- is why the fact that these companies merely add up the players' stats seems to be working against them, rather than for them. I would think that the less the use of the public figure's name is a comment on them as a person, the less control the public figure should be able to exert over it, but it seems to be the other way around. The fantasy game is stating the simplest, most basic facts about the player, and apparently that's why it's bad. It just seems backwards to me.

And I really think the "balancing test" would preclude baseball encyclopedias, if they hadn't already decided that "books are useful and games are silly!," which I think is not their business to tell us what's good and what's silly. Hell, the books are silly too, in the sense that they record how grown men did swinging sticks at balls in a grassy field. And plenty of people learn more about baseball from fantasy games than they do from encyclopedias. The basic point seems to be that it's called a "book" and it's written on pieces of paper, and we've already decided those are special. They're not special to me, though.

If they had said, "Want to own David Ortiz, come play CDM fantasy baseball", it would IMHO push the argument further toward MLBAM. They wisely do not do this.

I know it's not relevant to this legal case, but I have seen this sort of advertising for other fantasy games. In fact, I've written this sort of advertising. Whoops.

In fact, on page one, zonk describes methods where fantasy baseball can legally persist and not be violative of RoPu. People can still sell software to aggregate stats or perform drafts. People can still charge service fees to administer leagues. People can still offer news services about players. But if they try to create their own game and use players as game pieces, then you would have a problem.

Okay, I don't get this. If this case comes out for MLB, isn't fantasy gaming so intrinsically tied to "using players as game pieces" that you simply could not do it without a license? Why would it matter whether CDM makes millions adding up stats for thousands of people, or an individual (let's assume the commish gets a share of the pot) adds up stats in Excel for 12 people? They're both receiving money from running a game that's based on attaching Jeter's name to Jeter's stats. I realize that 1) MLB probably wouldn't find out about it or bother with it if they did and 2) it might be illegal gambling, but let's just talk about what could theoretically be done under right of publicity. That'd still violate the right, wouldn't it?

You have transformation if you put Derek Jeter in a Dungeons and Dragons game, make him a lawful good paladin, and have him go on quests for they eye of algomorah.

This, BTW, is a fantastic idea.

At some point, they lose the PR battle, and the court will start importing other law and trying to find a reason for them to lose.

Seems to me that Judge Luken is already trying to find a reason for them to lose.

The problematic aspect of this case for me is that the magistrate granted summary judgment for CDM, which implies that MLBPA/MLBAM couldn't possibly win on the merits. As this discussion indicates, that conclusion doesn't seem to be the case here. If there is *any* question as to how a reasonable jury might find if the case went to trial, the judge is supposed to deny the motion for summary judgment.

-- MWE

A lot of lawyers (and others) have looked awfully foolish trying to predict the outcomes of appeals based on the questioning in oral arguments.

My general feeling on this issue is this:

Baseball encyclopedias are exempt because they're simply publishing data, even though that data is associated with the names of players. It's no more a violation of a player's right to publicity than IMDB is a violation of an actor's.

A baseball card, on the other hand, isn't selling the stats, but the picture -- really, the entire card. One baseball encyclopedia is just as good as another if it has the same data, but if I wrote a player's name and stats on the back of a piece of cardboard with his picture pasted on the front, it's worth less than the baseball card, even though it's basically the same thing.

Baseball video games aren't selling data, they're selling a game they designed. They using the players to publicize that game, which is as clear a case of right-to-publicity as there could be. Without the players, there's still the game engine -- the players just make the game more appealing.

Fantasy baseball games, in my opinion, are not using the players to publicize their game, but rather providing data for a game that already exists. If MLB were to forbid ANY service to sell fantasy baseball games, fantasy baseball would still go on just the same as ever -- the players would just get the SAME data out of the newspaper -- or off MLB.com, for free.

These fantasy baseball games online aren't really providing the game, they're simply arranging and distributing publicly available data. They're not letting you "own" David Ortiz and Derek Jeter -- you could do that in EXACTLY THE SAME WAY whether or not these services existed. It's no different than a website that sends you news releases about your favorite celebrities. Do they have to pay the celebrities to do that?

Maury:

The MLBPA is representing -- taking the lead in the appeal -- but MLBAM is involved, as the two came to the joint agreement. This is -- by extension -- MLB as an industry placing licenses and fees to the use of online content.

Yes, but MLB purchased the player rights. If CDM wins this suit, MLB doesn't particularly suffer; it still controls its own trademarks, after all. The MLBPA does, because MLB stops paying for the rights.

As to your second point, if there is intent by CDM to market particular player names or likenesses, then there would be some correlation to your argument. If Derek Jeter is on the front of a video game or his likeness is on a card, then the discussion shifts.

What you're arguing here is that using one player's name is unacceptable but using every player's name makes it acceptable. I'm not sure what basis there is for that. Either that, or you're trying to draw a distinction between names and pictures. To be fair, the district court also did that, but there's no real basis for that distinction. The right of publicity is not limited to pictures. Putting Derek Jeter's name but not picture on the cover of your video game is just as infringing. (Perhaps it was the judge's attempt to import some sort of nominative fair use defense into the RoPu context.)

Let's say Sean charged for Baseball-Reference... Would he be in violation of the Missouri definition of Right of Publicity? I think much hinges on the cash prize elements, etc. of fantasy games.

MacMillan charged for the Baseball Encyclopedia, USAToday charges for its stats; Sean can charge for baseball-reference. It's not whether the person using the names makes money that's dispositive. You can't give away Derek Jeter t-shirts any more than you can sell them.

Backlasher needs to listen more closely to the oral arguments and the judges responses.

A lot of lawyers (and others) have looked awfully foolish trying to predict the outcomes of appeals based on the questioning in oral arguments.

Seemed incredibly one-sided in favor of upholding the lower court judgement.

If it was more balanced, I would be less inclined to see the judgment upheld.

The fun thing? We have three to six months to debate the outcome.

But in a balancing scenario, you are marketing the right to own Derek Jeter to baseball fans, and having your Derek Jeter game piece perform the exact same as Derek Jeter. Your target audience is people that will recognize Derek Jeter as Derek Jeter, and play to be able to own Derek Jeter doing what Derek Jeter does.

They aren't marketing the right to own Derek Jeter. They're marketing a forum for converting the stats of baseball players in the current ML season (or in keeper leagues, for seasons to come) into commodities, and providing the interface for the transfer between game players. That is a distinction with a difference.

The piece is not "Derek Jeter" but "Derek Jeter's baseball production," which is a different thing. The name Derek Jeter doesn't signify a game piece that can be represented by any general object, but the only possible way to identify "the baseball performance of Derek Jeter."

Derek Jeter has a right of publicity. The fact that Jeter hits .300 over a season doesn't. How could you possibly represent that fact "Derek Jeter hit .300" without using the name Derek Jeter?

If CDM wins, some numbnuts would believe they could call their game "Derek Jeter Fantasy Baseball",

Shouldn't that still be out as "possible endorsement confusion" independently of the decision in this case?

other persons would believe this gives them the right to sell Derek Jeter action figures based on the fantasy game

If I sell parody action figures of Derek Jeter, do I owe Derek Jeter licensing? I assume these guys haven't paid the subjects of these any fees. (Ignore for this question any "decedent's rights" issues.)

Villain Action Figures.

Seemed incredibly one-sided in favor of upholding the lower court judgement.

I'm not denying that. I'm saying that fact and $2 will buy you a cup of coffee.

Put another way, the ruling may be in CDW's favor, but you're putting *way* too much weight on the oral argument and not nearly enough on the briefs, which are far more important.

is why the fact that these companies merely add up the players' stats seems to be working against them, rather than for them. I would think that the less the use of the public figure's name is a comment on them as a person, the less control the public figure should be able to exert over it, but it seems to be the other way around. The fantasy game is stating the simplest, most basic facts about the player, and apparently that's why it's bad. It just seems backwards to me.


I don't think that is the case, but see my response to your other point as to why this is not the case.

The basic point seems to be that it's called a "book" and it's written on pieces of paper, and we've already decided those are special.

This is an important subtext. In the past, a book having a set of information and a game having the same set of information was legally distinguishable because the game created marketability on the player as a player piece. Its not the amount of information that is in play. Whether you include more or less has been indirectly decided and argued in past cases, and it really didn't affect the outcome too much.

What did affect the outcome did appear to be the nature of the speech. Now when you move to an electronic age--- BA, BP, BRef are going to be the analogues of "The Baseball Enclyclopedia" and fantasy sports are pretty much going to be the analog of Sports RPGs. And in MO, comics are apparently analogs of lunch boxes or trading card panels. Perhaps it should not be this way, but that is the way it has developed.

The "why" is not about the educational value, its about the predominance of the commercial aspect. I think my response to Pope explains that aspect as best I can. But there is room to create a meaningful legal distinction on those reletive merits in fantasy gaming.

Why would it matter whether CDM makes millions adding up stats for thousands of people, or an individual (let's assume the commish gets a share of the pot) adds up stats in Excel for 12 people? They're both receiving money from running a game that's based on attaching Jeter's name to Jeter's stats.

If they are making money off it based on the commercialization of the name, yes it is the same. But in the pen and paper method, the commissioner isn't making money off it.

As I mentioned, if all CDM was doing was taking your fantasy league and compiling stats for you, I doubt there is a problem. They can charge a fee for that service. They are selling a whole packaged game whose draw is the MLB players, that is why there is a legal issue. The providing of that game could be protected speech. That is what is now at issue.

A lot of lawyers (and others) have looked awfully foolish trying to predict the outcomes of appeals based on the questioning in oral arguments.


No doubt. I was going to include this in an earlier post, but did not want to ramble too much. There is predictive value in oral arguments. The big thing is not to look at one particular judge, but see the tenor of how the panel reacts to certain arguments. This is often more visual than auditory.

But the primary purpose of oral arguments is not for the judges to advocate (the age of Scalia has probably moved this line of thought). Its for the judges to resolve unanswered questions based on the motion submissions. The majority of the panel has already reached a strong preliminary inclination on their ruling. Its rare that oral argument in an appellate setting will sway that preliminary indication.

As such, oral argument often deals with tangential issues that are necessary to the writing of the opinion and the ultimate formation of the rule and rationalization rather than being outcome determinative.

With that being said, I agree with Emeigh that there is certainly one judge that seems to have his mind made up and wanted to use arguments as his soapbox. I don't care how he decides--I don't have a fan interest in the outcome as seems to be the case with many journalists and spectators. Who wins does not matter to much to me. I just care about the ultimate ramifications to the jurisprudence. I am concerned about how they decide to either bolster or erode RoPu, and I'm concerned about what they allow with regard to negative covenants with agreed upon injunctive remedies.

I know it's not relevant to this legal case, but I have seen this sort of advertising for other fantasy games. In fact, I've written this sort of advertising. Whoops.

Which could be ok, depending on how the jurisprudence of this case comes out. Notice you have people arguing that CDM is not doing this or anything close to this. They are setting up tests based on "advertising" Unless they give us something more granular, your act, which could be legally cognizable, seems to per se fail the test of those advocating the CDM side of the ledger.

As for CDM, their expert has admitted there is no market for the game outside the player name. I am happy to stand on that, without getting into a metaphysical argument about what CDM does, and the commercial value of the name. What others do is certainly up for further explanation or discussion.

You are focusing on the correct side of the equation. Is what they are providing expressive enough that the First Amendment either guarantees that right, or large enough that the right becomes the predominate mode of expression.

Put another way, the ruling may be in CDW's favor, but you're putting *way* too much weight on the oral argument and not nearly enough on the briefs, which are far more important.


Yes and more important who wins (or debating about who wins) is the exact sort of thing that I have little interest in, and probably will lead to another round of "steroid wars." All I care about is the jurisprudential aspect of the decision. I'm trying very hard not to get pulled into "teh MLB sux" and personal insult aspect of this discussion like I let myself do on other subjects.

Heck, very little has been said about the fact that:

(1) CDM expressly agreed that the players and MLBAM as their licensees had these rights;
(2) Agreed they would not challenge these rights;
(3) Agreed they would not use the names and stats after the termination of the prior license agreement;
(4) Agreed that MLBAM could enforce these covenants with injunction; and
(5) Received value for these promises.

The judge has said these are void for public policy reasons, but doesn't really explain the public policy to well. We can presume she is importing patent law, but that should be an interesting rationale when articulated by this court.

The judge has said these are void for public policy reasons, but doesn't really explain the public policy to well. We can presume she is importing patent law, but that should be an interesting rationale when articulated by this court.

Yup. The judge might have even quoted one of those Scotus patent cases in the original decision; I seem to recall that. (Too lazy to check at the moment.) The problem is that patent law has very different public policy considerations than other IP does. Patents are disfavored in a way that copyright/tm/RoPu are not; it's not considered a public good to invalidate a trademark in the way that it is to do so for a patent.

Heck, very little has been said about the fact that:
(1) CDM expressly agreed that the players and MLBAM as their licensees had these rights;

Again, yup. The panel could end up reversing her decision solely on the grounds of the contract, and not address any of the RoPu issues we've been rehashing for months.

If I sell parody action figures of Derek Jeter, do I owe Derek Jeter licensing?

Depends what you mean by "parody," but not necessarily. See the Cardtoons case. (Short version: if the parody is actual commentary on the players, then no, you don't owe licensing because there's a First Amendment defense. If you're just trading off his fame to make a joke, then yes, you do.)

The problem is that patent law has very different public policy considerations than other IP does. Patents are disfavored in a way that copyright/tm/RoPu are not; it's not considered a public good to invalidate a trademark in the way that it is to do so for a patent.


Moreover, it is greatly going to discourage the settlement of RoPu and trademark cases (want to talk about lawyers making money, this would be a windfall for litigators if CDM wins on this count). What good would it be to settle where both sides agree upon allowed and restricted uses, if the court says those agreements are no good. You would have to have a judicial determination of ownership and scope of rights on the vast majority of disputes.

CrosbyBird [191]:

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?

Depending on what they were actually doing, perhaps they should have been. Or perhaps they were paying the MLBPA. Remember, many of the large companies -- including CDM -- were, until recently.


JPWF13: I'm curious what I wrote that makes you think I don't "see" CDM's position. If I'm dismissive of the arguments in favor of CDM, it's because we've had very long discussions on this before, and I'm not seeing anything new in this thread. (Incidentally, when those discussions began, I felt that MLB didn't have a leg to stand on; it was only after long exchanges and after I researched the caselaw that I decided that MLB was right.) Plus, there don't really seem to be any lawyers here making the CDM case. I don't mean that to come out snobby; what I think I mean is that it seems to me people are making general policy preference arguments rather than specific legal arguments.

And since I bring it up: what I'd like to hear is someone who support's CDM's position explain how he'd salvage the MLBPA's rights with respect to Topps, if he thinks that the dissemination of stats defeats right of publicity arguments. (Or argue that Topps shouldn't have to pay, either.)


Mushmouth [193]: Nobody thinks CDM "invented" fantasy baseball. That isn't the issue here at all. They didn't "invent" the concept of putting athletes faces on products, either, but if they start selling t-shirts with Derek Jeter's picture on them, I'm confident they'll lose.

With respect to the comment directed at me - wrong if you say that's not the issue here at all. You are missing the point of my whole post, which was that essentially these are, in my view, content delivery services, not applications or games unto themselves. And that distinction is critical if given credence. Compare it to Napster for instance. Nobody said Napster was in violation of any law for delivering content, rather it was that they allowed for the delivery of content that was copyrighted, without appropriate safeguards. Not an issue here. Here, the companies are creating a content delivery service for uncopyrightable facts. The simply mathematical calculations which feed into a league's chosen scoring system don't alter this landscape in any meaningful way.

The problematic aspect of this case for me is that the magistrate granted summary judgment for CDM, which implies that MLBPA/MLBAM couldn't possibly win on the merits. As this discussion indicates, that conclusion doesn't seem to be the case here. If there is *any* question as to how a reasonable jury might find if the case went to trial, the judge is supposed to deny the motion for summary judgment.


Mike,

I don't believe the SJ was improper based on the judges ruling. The jury does not get to decide the issue of what is protected speech. The jury may be able to weigh questions of fact, such as:

(1) Does the game have value beyond the player names?

But CDM's contention is that even if that is true, it does not matter because the speech is still protected. (They also make and lose other arguments, but this trumps). That is why I am not really engaging that aspect in this go around of discussions.

Those that are saying, they aren't getting value on the name, they are getting value on x, is not really relevant. If that were considered by the court to be legally important, then you would have a disagreement on a material issue of fact, and it would go to the jury. That is a trial argument that CDM is willing to temporarily concede, and even if they don't concede it, will have their own expert testifying against them.

(Now, its possible the court could say the value is a question of law, but that really hasn't been placed too much into the arguments or decisions, beyond MLBAM reminding the court that CDM has discussed the commercial ramification.)

FWIW, many issues in the abstract laws such as IP and Antitrust do end up resolved by legal determination because quite often, the court has determined that most of the issues are questions of law.

Very, very late to the dance here.
A prize to whomever sums up this intriguing 235-post thread in 100 words or fewer.....

A prize to whomever sums up this intriguing 235-post thread in 100 words or fewer.....


I cannot do that (particulary 100 words), but I can try to sum up important details while correcting some typos and mistatements in my early posts.

All states have some common law rights of misappropriation. The Lanham Act provides that you cannot falsely use someone's name to depict endorsement or origin of services. Right of Publicity law generically extends this concept to posit that you cannot commercially gain from other the use of another person's name, identity or likeness. In one state, CA, you cannot gain any advantage at all from the use of another person's name, identity or likeness. In every case, there is a constituational limit that protects speech.

Nineteen states have Right of Publicity statutes. Thirteen of the states with RoPu statutes recognize a post mortem right to publicity. Eleven other states have explicitly found the right of publicity at common law. The other 21 jurisdictions have at least common law right of privacy, but have not explicitly developed a seperate and distinct right of publicity. (correcting earlier typos and errors that all states have RoPu, which should have been RoPa, and more than half have statutory causes, where more than half have express causes through statute or common law).

Each of these states laws will vary to some degree. For instance in Nevada, celebrity impersonation would expressly be a legal action. Each of these states also perform different tests to determine what is commercial and what lies within the constitutional limits of protected speech.

The case is brought in MO, so we are examining MO law. The analysis would be different in other jurisdictions, but not meaningfully so on the central issues. The final decision of the appeals court will have precedential affect on federal cases brought pursuant to MO law in the 8th Circuit district courts, unless and until overruled. The decision may also be persuasive in other courts and jurisdictions and will likely give us an indication of which way the polictical winds are blowing.

MO has a common law right of publicity. The test is:

(a) use of name or likeness that
(b) identifies the individual for
(c) a commercial purpose
(d) that is not otherwise protected speech.

There has been some indirect questioning on (a) and (b) because a photograph was not used. The subtest or explanation on (a) and (b) is if a person will reasonably identify the individual from the name or likeness then the test is met. A photograph is not a requirement. That is directly found in MO Supreme Court jurisprudence. So unless you think Derek Jeter is not Derek Jeter the NY Yankee baseball player these elements are met.

There has been some direct questioning on commercial purpose. CDM is making money off the enterprise so it is a commercial purpose. Some are pointing out others like newspapers are allowed to make money off using the name Derek Jeter. That goes to the test of protected speech, not commercial purpose. Some are trying to say that players aren't losing anything. First, that is likely factually incorrect, but as a legal matter, if you make money off it, it is usually considered money that could inure to the celebrity. Moreover, MO jurisprudence looks to the intent of the party to gain a commercial advantage and does not require any actual injury to occur. CDM's expert admits that there is no game without the use of the player names. Economic experts are usually called in to testify about the percentage of money that is devoted to the fame of the person at the damages stage. (clarifying earlier statements about the test, which is meant to only apply to the commercial element and more succinctly stated by Emeigh).

If all the other elements are met, each state adopts a test to determine whether the speech is otherwise protected. MO adopts a test about the predominance of the use of the name or likeness. Is it predominantly commercial or predominantly expressive. Other states look to whether the use is incidental, whether the use is related to the protected expression or meant to draw readers to the content, or whether the use transforms the name into something that is protected.

Biographies, journalism, literature, etc. have traditionally been found to be protected speech. Newspapers that run for-profit polls to collect information that is newsworthy has been found to be protected speech. Games that use names and likenesses as player pieces have not traditionally been found to be protected. Comic books, where the publishers have tried to market the connection to the real life persons that are the basis for fictional characters and have merchandizing around the same characters have not been found to be player pieces. The court has to decide where to draw the line on protected speech based on CDM's providing of a game where their expert admits that there is no value to the game outside of the players, but where CDM does not directly market the players as being part of their game.

The appeals court and certain commentators have talked about the potential monopoly by MLB (sic) of fantasy baseball. There is some antitrust discussion; however, antitrust is not an issue in this case. IP by its nature does afford limited legal monopolies.

Several people have discussed what they wish the law to be. That line appears to uniformly be advertising or no more rights than appear in the Lanham Act. A problem with saying advertising is that still would require a test on protected speech and a definition of advertising based on the totality of content devoted to the name and likeness and the expressive portions of the publication or game. You would have to reinterpret cases that have already been decided by this new paradigm.

Some have discussed the analog to gambling. MLB claims there are no prospect bets on individual player performances. Others have said they are aware of over/under prospect bets on player performance. The issue of the legality of fantasy baseball is not an issue in this case. The result of prospect betting on player performance after the result of this case would be an interesting question, IMHO.

Others have discussed other very concrete examples and opined or questions whether they would be allowed or disallowed based on the outcome of this case. Most do not feel this will reach any organization that is not selling fantasy baseball as a turnkey service, or affect traditional publishing industries or stat services in any way shape or form. I and perhaps Srul believe it could have ramifications on the bb-ref advertising model, Nieporent disagrees, but that discussion was mostly in the SJ round of these threads.

There are small discussions about whether federal law pre-empts the negative covenant claims in the contract. I misstated this earlier as the judge's decision was based on public policy of patent law rather than copyright law, and applied to the contract, not the right of publicity. The magistrate judge correctly found that copyright law does not pre-empt RoPu (which had been a pretty far out there argument of CDM at the SJ stage). The persons involved in that discussion agree that trademarks and publicity are much different than patents so neither pre-emption nor a broad striking of a covenant should apply.

I cannot do that (particulary 100 words), but I can try to sum up important details while correcting some typos and mistatements in my early posts.

1192 words, but who's counting?