In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, the US District Court for the Eastern Dist. of Missouri ruled that baseball statistics connected with players' names are facts that can not be protected by copyright or the right of publicity. The court dismissed MLB Advanced Media and the MLB Players' Association motions for summary judgment and granted CBC's request for a declaratory judgment.
1. Right of publicity
The court finds that players do not have a marketable and protectable interest in their playing statistics and that linking a player's name with his statistics does not violate the right of publicity:
Unlike cases where the commercial advantage element of the right of publicity has been found, there is nothing about CBC’s fantasy games which suggests that any Major League baseball player
is associated with CBC’s games or that any player endorses or sponsors the games in any way. The use of names and playing records of Major League baseball players in CBC’s games, moreover, is not intended to attract customers away from any other fantasy game provider because all fantasy game providers necessarily use names and playing records. Indeed, there is no evidence to create a triable
issue as to whether CBC intended to create an impression that Major League baseball players are associated with its fantasy baseball games or as to whether a reasonable person would be under the impression that the baseball players are associated with CBC’s fantasy games any more than the players are associated with a newspaper boxscore. As such, there is no triable issue of fact as to whether CBC uses Major League baseball players’ names in its fantasy baseball games with the intent of obtaining a commercial advantage.
The court distinguishes this case from Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Super. 1967), where a fantasy Golf board game used photos of the players. That involved appropriation of a likeness. While the Tony Twist and Here's Johnny cases were based on the defendants' use of key elements of an individual's public persona and likeness, fantasy baseball relies on fact-based statistics, not any individual's likeness.
CBC’s mere use of Major League baseball players’ names in conjunction with their playing records does not establish a violation of the players’ right of publicity. CBC’s use of the baseball players’ names and playing records in the circumstances of this case, moreover, does not involve the character, personality, reputation, or physical appearance of the players; it simply involves historical facts about the baseball players such as their batting averages, home runs, doubles, triples, etc. CBC’s use of players’ names in conjunction with their playing records, therefore, does not involve the persona or identity of any player. Indeed, under the facts of this case there is no triable issue as to whether the persona or identity element of the right of publicity is present.
The court finds that the policy considerations underlying right of publicity law do not preclude these use of statistics:
the policy considerations are aimed at preventing harmful or excessive commercial use of one’s celebrity in a manner which could dilute the value of a person’s identity However, CBC’s use of Major League baseball players’ names and playing records in fantasy
baseball games does not go to the heart of the players’ ability to earn a living as baseball players; the baseball players earn a living playing baseball and endorsing products; they do not earn a living by the publication of their playing records.
Publishing a fantasy baseball game is protected speech under the First Amendment.
Courts have found that First Amendment freedom of expression is applicable in cases where the subject matter at issue involved factual data and historical facts. The names and playing records of the baseball players as used by CBC are, in fact, “bits of baseball history” which educate the public about baseball. Most importantly, the statistical information about Major League baseball players, including their hits, runs, doubles, etc., which CBC disseminates, represents historical facts about baseball players.
The fact that the social commentary is humorous, rather than serious, does not preclude First Amendment protection.
In the context of the matter under consideration, CBC communicates information about Major League baseball players; CBC does not use players’ names and playing records for the purpose of advertising a product or services. As such, the court finds that CBC’s use of the players’ names and playing records is not commercial speech.
Also, it is significant in the matter before this court that if the players’ right of publicity were to prevail over CBC’s First Amendment right of freedom of expression, CBC’s First Amendment right of freedom of expression would be totally extinguished; CBC would be unable to create and operate its fantasy games as the games cannot operate without the players’ names and playing records. To the extent that Advanced Media and the Players’ Association contend that they do not object to the use of players’ playing records but rather only to their names, such use by CBC is not realistic; the records mean nothing without the names. For example, it would be meaningless and useless to its game participants for CBC to report that there were five home runs or ten singles in a baseball game without identifying the players who hit the home runs or singles. As such, CBC would be out of business if it were precluded from using in its fantasy games either players’ names or their names in conjunction with their playing records.
After balancing the interests at issue regarding CBC’s First Amendment right to freedom of expression and those involved in the players’ claimed right of publicity the court finds, in the circumstances of this case, that CBC’s First Amendment right to freedom of expression prevails over the players’ claimed right of publicity; none of the justifications for the right of publicity compel a finding that the First Amendment should not trump the right of publicity. See Cardtoons, 95 F.3d at 972-76; Gionfriddo, 94 Cal. App.4th at 410. The
policy considerations and interests at risk upon restricting CBC’s First Amendment right to freedom of expression outweigh the policy considerations and interests at risk in the players’ claimed right of publicity.
Relying on National Basketball Ass’n v. Motorola, 105 F.3d 841 (2d Cir. 1997), the court finds that the scores and statistics resulting from a baseball game can not be protected by copyright.
This court has found above that the names and playing records of Major League Baseball players in the context of CBC’s fantasy games are factual information which is otherwise available in the public domain
Indeed, CBC’s fantasy games rely upon “only facts” which result from the playing of baseball games, “not the expression or description of the game.”
The court, therefore, finds that in the circumstances of this case “the strong federal policy
favoring the full and free use of ideas in the public domain” as manifested in the laws of intellectual
property prevails over the challenged contractual provisions in the 2002 Agreement.