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October 19, 2007

Federal Appeals Court Rejects Absurd Intellectual Property Argument

by Doug Mataconis

It’s not often that America’s pastime and individual liberty cross paths, but it happened earlier this week when a Federal Appeals Court in Missouri rejected an argument by Major League Baseball and it’s players union that player names and statistics constitute intellectual property rights:

Oct. 16 (Bloomberg) — Companies that operate fantasy sports leagues have a First Amendment right to use players’ names and statistics for free, a court ruled in a case filed against Major League Baseball.

The federal appeals court in St. Louis ruled today in favor of C.B.C. Distribution and Marketing Inc., a closely held operator of fantasy sports leagues.

The ruling is a victory for the fantasy sports business, which started with statistics-rich baseball in 1980 and spread to other sports. Today it is a $1.5 billion industry, according to the Fantasy Sports Trade Association.

“It’s vindication,” said Greg Ambrosius, a former president of the association who is now editor of Fantasy Sports Magazine. “We were a bunch of Mom-and-Pop shops who grew the industry from nothing to where it is today, and then when we got big, people started saying, `Hey, we own this.”’

At issue in the litigation was the right to names and statistics of pro athletes when the information is used by a business rather than a news organization.

“It would be strange law that a person would not have a First Amendment right to use information that is available to everyone,” a three-judge panel said, ruling the Constitution trumps the players’ ability to control their publicity.

Strange indeed. It would sort of be like Microsoft saying that it has an intellectual property right in the price of it’s stock.

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  1. Interesting. Now here’s a question…how will this affect the licensing of players for video games? I realize that team uniforms and logos are still copyrighted, but since fantasy leagues can use players’ names and statistics can video game companies now do the same as the fantasy leagues for players’ names, stats and likenesses? The NFL and NCAA have essentially squeezed all competitors but EA Sports out of the video football market with exclusive licensing agreements, but if the names, stadiums, and stats are fair game for everyone does this now mean that competitors can work around the licensing agreement as well and use current active players for their product? It seems like this verdict could actually be a very big deal down the road for all sports and sport-related merchandising, not just baseball.

    Comment by UCrawford — October 19, 2007 @ 8:22 am
  2. [...] Check it out! While looking through the blogosphere we stumbled on an interesting post today.Here’s a quick excerptIt would sort of be like Microsoft saying that it has an intellectual property right in the price of it’s stock…. [...]

    Pingback by My Ghillie » Federal Appeals Court Rejects Absurd Intellectual Property Argument — October 19, 2007 @ 9:03 am
  3. Interesting concept, UCrawford. I think that there is a legal distinction between referring to a player by name and using his name in advertising. In other words, there’s a clear line between having Mickey Mantle in a table alongside a bunch of statistics, and giving your game the title “Mickey Mantle’s Baseball”.

    There is an interesting parallel with characters from fiction. I don’t think that you could put together a light saber game using characters such as Luke Skywalker, Darth Vader, Obiwan Kenobee, and so forth. So, what’s the difference between using real characters and using fictional characters? That’s going to be a messy one to litigate.

    Comment by Chepe Noyon — October 19, 2007 @ 10:45 am
  4. I think using the player’s image or likeness is protected. I seem to recall Michael Jordan being involved in a lawsuit where he was given rights as to using his reproduction in marketing or games or whatever. And of course copyrighted logos (like team names and uniforms) aren’t still the property of the sports leagues and they have a right to determine who uses them. But I do wonder if this affects the value or application of the exclusive licensing agreements the NFL has set up?

    Comment by UCrawford — October 19, 2007 @ 10:51 am
  5. As for your Star Wars question, fictional characters are usually copyrighted, therefore the property of whoever owns the copyright. I think the court was saying, however, that this doesn’t apply to real-life people.

    It’ll be interesting to see if this gets appealed and what the repercussions might be.

    Comment by UCrawford — October 19, 2007 @ 10:53 am
  6. This old SI article from 2001 touches on Jordan’s ownership of his own image and the NBA licensing agreement…I don’t have time right now to go digging further but I’m sure someone else might and this seems like it might be an interesting discussion:

    Comment by UCrawford — October 19, 2007 @ 10:57 am
  7. Doug,

    You’re an attorney…any thoughts?

    Comment by UCrawford — October 19, 2007 @ 10:58 am
  8. Now if you want to see a ridiculous argument about MLB ownership of intangibles, here’s one for you. The Colorado Rockies are trying to trademark the name Rocktober so they can monopolize merchandising sales:

    Good luck with that, considering that damn near every hard rock station in America has been using that word to describe October since I was old enough to listen to hard rock.

    Comment by UCrawford — October 19, 2007 @ 12:41 pm

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