In a little publicized (outside of sports news) case, a judge in St. Louis ruled earlier this month that certain information is not subject to copyright laws. The specific case involves baseball fantasy league. As the New York Times (Baseball Is a Game of Numbers, but Whose Numbers Are They?) noted when the case was first filed:
Like no other corner of American popular culture, baseball communicates in numbers. From .406 (Ted Williams’s 1941 batting average) to 755 (Hank Aaron’s record home run total) to countless digits bandied about water coolers every morning, statistics convey ideas and images that, even overnight, become inseparable from the players to whom they belong.
This relationship between players and numbers, so often romanticized, is now being stripped to its skeleton in a lawsuit with considerably wider ramifications. While the dispute focuses on fantasy baseball — in which millions of fans compete against one another by assembling rosters of real-life major leaguers with the best statistics — a real legal question has arisen: Who owns that connection of name and number when it is used for such a commercial purpose?
Many onlookers have cast this issue as a tiff over batting averages — as if children were squabbling over the backs of baseball cards — but legal experts are saying it could affect the wider arena of celebrity rights, freedom of the press and even how the press is defined as the Internet age unfolds.
The dispute is between a company in St. Louis that operates fantasy sports leagues over the Internet and the Internet arm of Major League Baseball, which says that anyone using players’ names and performance statistics to operate a fantasy league commercially must purchase a license. The St. Louis company counters that it does not need a license because the players are public figures whose statistics are in the public domain.
. . .
Major League Baseball Advanced Media is not making a copyright claim to the statistics themselves; a 1997 decision in the United States Court of Appeals involving the National Basketball Association ruled sports statistics to be public-domain facts that do not belong to the leagues.
Rather, the central issue concerns celebrities’ ability to control use of their names in commercial ventures, and how this “right of publicity,” which has developed under state common law and statute over the last half-century, may commingle with Constitutional press protections under the First Amendment.
The term “right of publicity” was coined in 1953 when, in a case involving baseball, a court ruled that Topps Chewing Gum company could not print trading cards that featured baseball players’ names and likenesses without their permission.
In 1970, in a case starkly similar to the CBC case, a Minnesota state court found that two baseball board games, each of which used only names and statistics, misappropriated the players’ marketable identities and was subject to license.
But other subsequent cases have favored First Amendment concerns over the celebrities’ right of publicity. Several courts have maintained that the dissemination of information, even for profit or for entertainment, cannot be curtailed by any state’s right-of-publicity laws. In its court filings, CBC argued that it relied on baseball players’ names and statistics “as their lifeblood in much the same way that the sports sections of newspapers do.”
Major League Baseball Advanced Media, however, says that selling a service that helps customers pick and trade players crosses the line between reporting on games and running a nonjournalistic, commercial enterprise.
But, as the WSJ Law Blog notes, the judge ruled in favor of CBC – Fantasy Sports Leagues Hit Grand Slam With Court Ruling:
“The undisputed facts establish that the names and playing records of (MLB) players as used in CBC’s fantasy games are not copyrightable and, therefore, federal copyright law does not pre-empt the players’ claimed right of publicity,” wrote Judge Mary Ann Medler. Even if players have a claimed right of publicity, she added, “the First Amendment takes precedence over such a right.” The judge likened the names and stats of professional ballplayers “to the names, towns and telephone numbers in a phone book, to census data, and to news of the day.”
MLB Advanced Media spokesman Jim Gallagher said the league has distinguished that gray area from the beginning.
“We’ve agreed that the stats and names are in the public domain,” Gallagher said. “But when you start to use teams logos and other images as CBC did, you need a license, it’s that simple.”
In this game, nothing is simple. Any one want to take bets on whether this one is headed for the Supreme Court?