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Fantasy Baseball Gets First Amendment Protection

In 2006, the Eastern District of Missouri held that the operator of a Web site offering fantasy baseball games using Major League Baseball player names and statistics did not violate the right of publicity or copyright rights of the players. C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006).

Undaunted, MLB appealed and was smacked down yesterday. See C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, L.P., __ F.3d __ (8th Cir. 2007). While there are tangential issues, the important one in this case is the court’s balancing of MLB players’ publicity rights vs. The First Amendment.

An action based on the right of publicity is a state-law claim. See Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 566 (1977). In Missouri, “the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” Doe v. TCI Cablevision, 110 S.W.3d 363, 369 (Mo. 2003), cert. denied, 540 U.S. 1106 (2004). (source)

Many celebrities, wealthy, and otherwise overly-privileged citizens have this bizarre belief that their status means that the law does not apply to them. (example) Unfortunately, courts occasionally get star-struck and agree with them. Not this time. The Eight Circuit blessedly gave the MLB a lesson in First Amendment law — the Right of Publicity does not trump the First Amendment.

The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v. Scripps-Howard Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to the latter. First, the information used in CBC’s fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone. It is true that CBC’s use of the information is meant to provide entertainment, but “[s]peech that entertains, like speech that informs, is protected by the First Amendment because ‘[t]he line between the informing and the entertaining is too elusive for the protection of that basic right.’ ” Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 969 (10th Cir. 1996) (quoting Winters v. New York, 333 U.S. 507, 510 (1948)); see also Zacchini, 433 U.S. at 578.

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