A New Fantasy Sport: Defining the Right Of Publicity After C.B.C. Distribution v. Major League Baseball Advanced Media

The U.S. Supreme Court has declined to review the Eighth

Circuit's decision in C.B.C. Distribution and Marketing,

Inc. v. Major League Baseball Advanced Media, L.P.

1- the "Fantasy Baseball" case. It

is an unfortunate missed opportunity to clarify the "Right

of Publicity". The convergence of advertising ("brand

building") and information-entertainment

("content") has already confused courts and

practitioners attempting to apply existing precedents that had

separated the world into "commercial" and

"non-commercial" speech. As brands, media companies,

celebrity bloggers, and others push harder to engage consumers

who push harder and harder to avoid obvious commercial

messages, publicity rights claims will multiply. This makes

First Amendment protection all the more crucial. By letting the

Fantasy Baseball decision stand, the Supreme Court has only

further confused the analysis - an analysis which

contains three fundamental issues: 1) whether the use is for

advertising or trade, i.e., "commercial"; 2)

whether content includes the identity of a person, and 3)

whether that use is nonetheless protected by the First

Amendment, i.e., a "Fair

Use."

1. COMMERCIAL USE

   The Eighth Circuit held, without any analysis, that the use

   of player names, statistics, and other information was

   commercial because the use was "for purposes of

   profit".

   The Eighth Circuit rejected the District Court's finding

   that the Fantasy baseball games were not obtaining a commercial

   advantage from using the players' names and information.

   2The Court simply stated that the Fantasy baseball

   game generated revenue and therefore was commercial. Most

   content - - books, magazines, films, etc. - - is created and

   disseminated for profit. The fact that an author sells the

   content has repeatedly been held not sufficient to determine

   whether the use is a "commercial" use in violation of

   the right of publicity.

2. THE EVER EXPANDING SCOPE OF IDENTITY

   The right of privacy began with the use of "a

   person's name, picture or portrait." 3It

   has evolved into the use of a person's persona or identity.

   Today it may even encompass a context suggesting the identity

   of a person by virtue of his or her association with another

   person's intellectual property.4 Developments in

   this area continue to be confused.

   A comprehensive analysis of this issue is contained in the

   Magistrate Judge's decision in the Fantasy Baseball case.

   The Magistrate Judge held that use of names of baseball players

   to identify their statistics did not constitute a commercial

   appropriation of a symbol of their identity. 5The

   Eighth Circuit rejected this ground for summary judgment

   holding: "when a name alone is sufficient to establish

   identity, the defendant's use of that name satisfies

   plaintiff's burden to show that a name was used as a symbol

   of identity."6

3. BALANCING THE FIRST AMENDMENT AND PUBLICITY RIGHTS

   CLAIMS

   The Supreme Court, in its one case that it characterized as

   a Right of Publicity case,7 gave short shrift to the

   First Amendment but at least acknowledged that publicity rights

   claims have to be balanced against it. However, the Court

   provided no guidance on the factors to consider or how the

   balance should be struck. Chaos ensued.8 The Circuit

   Courts have been inconsistent and in open disagreement over how

   to apply the First Amendment protections to publicity rights

   claims. Indeed, the Ninth Circuit has yet to achieve a

   consistent framework -- on the one hand, virtually ignoring

   First Amendment protection for creative expression,9

   and on the...