Many sports fans play fantasy baseball or football games. Should the operators of on-line fantasy games, which generate millions of dollars in annual revenues, have to pay a licensing fee to Major League Baseball, the NFL, and/or their players for using game statistics and player names? For example, does the unauthorized use of Brett Favre’s name and statistics in a for-profit NFL fantasy football game violate his right of publicity?
In my recently published article, A Triple Play For The Public Domain: From Delaware Lottery to Motorola to C.B.C., 11 Chapman L. Rev. 569 (2008), I argue:
The creation of a collateral product incorporating merely public domain information about a sports event or athletes’ performances, including fantasy league games, is not (and should not be) infringing — absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act.
. . .
In [C.B.C. v. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)] the Eighth Circuit correctly concluded that MLBAM did not have the legal right to prevent the names of baseball players and their playing statistics from being used in connection with unauthorized fantasy baseball products [on First Amendment grounds]. However, by holding that this conduct violated the players’ publicity rights, it failed to recognize that public domain baseball statistics in the form of a fantasy league game — not player identities or personas — is the collateral product offered to the public.
. . .
Merely incidental or descriptive use of players’ names to identify collateral products is permissible unless it creates a likelihood of consumer confusion regarding endorsement or sponsorship.
. . .
[T]he commercial benefit that C.B.C. derives from its fantasy baseball league is irrelevant when public domain facts (i.e., baseball statistics), which may be freely used by the public, are the essence of its game. Extending the right of publicity to require C.B.C. to pay a licensing fee would create an exclusive property right that precludes, or severely limits, the commercial use of public domain information, reduces the availability of collateral products, and/or increases the costs to consumers. Such a broad state-created “right of publicity on steroids” is legally and economically unjustified.
What do you think?