Addressing whether commercial fantasy games violate baseball players’ rights of publicity, the U.S. Court of Appeals for the Eighth Circuit held that first amendment rights prevail over players’ publicity rights. C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, Case Nos. 06-3357, -3358 (8th Cir., Oct. 16, 2007) (Arnold, J.; Colloton, J., dissenting).

C.B.C. Distribution brought a declaratory relief action to establish its right to use, without license, the names of and game information about, baseball players to offer fantasy baseball games. Major League Baseball Advanced Media (MLBAM), as exclusive licensee of the Major League Baseball Players Association, counterclaimed alleging violation of the players’ rights of publicity under Missouri law. In Missouri the tort (of violation of right of publicity) requires that defendant used plaintiff’s name as a symbol of his identity without consent and with the intent to obtain commercial advantage. The district court granted summary judgment, ruling that C.B.C. did not violate the players’ rights and that even if C.B.C. did do so, the first amendment preempted those rights. MLBAM appealed.

The Eighth Circuit found that CBC had violated the players’ rights. The court criticized the district court for not understanding that "when a name alone is sufficient to establish identity, the defendant’s use of that name satisfies the plaintiff’s burden to show that a name was used as a symbol of identity." Because C.B.C. used the players’ identities for profit, their identities were being used for commercial advantage.

The court ruled, however, that C.B.C.’s first amendment right to use the information trumped the players’ rights. Applying the Zacchini v. Scripps-Howard Broadcasting balancing test, the court found that the rights of publicity must give way to First Amendment considerations. The court based its conclusion in part on the fact that all of the information used by C.B.C. was "readily available in the public domain," as well as on the fact that fantasy games, unlike product endorsements, include all players, rather than focusing on any one star player. The court found that recitation of baseball information commands substantial public interest and therefore is a form of expression due substantial constitutional protection. It also found that this case did not "implicate the interests states typically intend to vindicate by providing right of publicity to individuals." For example, fantasy games do not prevent players from pursuing their own endorsement deals.

Practice Note: The advent of the internet as a major medium of entertainment has caused a dramatic rise in the popularity of fantasy games. The court’s decision brings long-awaited guidance on rights of publicity in this context, but it will be interesting to see how long this precedent stands. It is unlikely that the major leagues and their players will sit passively and let this significant source of licensing revenue slip through their fingers.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.