16 October 2007

Dropped Infield Fly

CBC Distribution and Marketing runs a for-profit fantasy baseball system, previously via a contract with major-league baseball.1 CBC sued for a declaration that using players' names, biographical profiles, and playing statistics did not infringe any cognizable right. There were three theories at issue, only two of which made their way into the Eighth Circuit's opinion today; the copyright-preemption issue wasn't preserved.2

First up was the juicy issue: The tension between the players' rights of publicity and the First Amendment. Although the court's opinion ended up in the right place, it meandered a bit on the way there.

In addition, the facts in this case barely, if at all, implicate the interests that states typically intend to vindicate by providing rights of publicity to individuals. Economic interests that states seek to promote include the right of an individual to reap the rewards of his or her endeavors and an individual's right to earn a living. Other motives for creating a publicity right are the desire to provide incentives to encourage a person's productive activities and to protect consumers from misleading advertising. But major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements. Nor is there any danger here that consumers will be misled, because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with "star power" is endorsing CBC's products.

Then there are so-called non-monetary interests that publicity rights are sometimes thought to advance. These include protecting natural rights, rewarding celebrity labors, and avoiding emotional harm. We do not see that any of these interests are especially relevant here, where baseball players are rewarded separately for their labors, and where any emotional harm would most likely be caused by a player's actual performance, in which case media coverage would cause the same harm. We also note that some courts have indicated that the right of publicity is intended to promote only economic interests and that noneconomic interests are more directly served by so-called rights of privacy. For instance, although the court in Cardtoons [, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959,] 975-76, conducted a separate discussion of noneconomic interests when weighing the countervailing rights, it ultimately concluded that the non-economic justifications for the right of publicity were unpersuasive as compared with the interest in freedom of expression. "Publicity rights ... are meant to protect against the loss of financial gain, not mental anguish." We see merit in this approach.

CBC Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, Inc., No.·06–3357 (8th Cir. 16 Oct. 2007), slip op. at 8-9 (most internal citations omitted).

Well, ok, I guess. However unpersuasive I find the distinction between "publicity" and "privacy" rights — and however inconsistent that distinction is with core First Amendment values — the real key to this dispute is the license that I neglected to describe above. That license contained a "shall not challenge" provision. These provisions are usually reprehensible, and reflect unequal bargaining positions more than they reflect anything else. However, the Eighth Circuit found a rather... inventive way to get around it.

Section 8(a) of the agreement provides that the Players Association "is the sole and exclusive holder of all right, title and interest" in and to the names and playing statistics of virtually all major league baseball players. This is quite obviously a representation or warranty that the Players Association did in fact own the state law publicity rights at issue here. For the reasons given above, the Players Association did not have exclusive "right, title and interest" in the use of such information, and it therefore breached a material obligation that it undertook in the contract. CBC is thus relieved of the obligations that it undertook, and the Players Association cannot enforce the contract's no-use and no-challenge provisions against CBC.

Id., slip op. at 11. The dissent disagrees that this is sufficient ground. However, the majority apparently was not interested in balancing federal IP policy against state contract law, so it used this theory — which, as it notes just before that quotation, was not advanced by the parties; they argued about a different "warranty" — to avoid answering the question.

And that's too bad, because this kind of question applies very much to writers — especially writers who must deal with overreaching claims of copyright, such as those of the Joyce estate.

  1. That almost nothing about baseball — except the money involved — is really "major" is beside the point.
  2. This is actually very fortunate. I always get nervous when I see the Eighth Circuit writing on copyright issues: Too often it reaches indefensible results through hyperformalistic reasoning (e.g., West v. Mead), and too often when the result is defensible it goes off on tangents.