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Tuesday, May 16, 2006
MLB = Misusing Law Brazenly
Since I'm about to go away for a bit, I can't resist one more post on a bizarre IP dispute. The NYT today covers Major League Baseball's insistence that "anyone using players' names and performance statistics to operate a fantasy league commercially must purchase a license." Volokh spots the slippery slope here immediately:
"If anything, this case is even more impactful if the court rules for [MLB], because it will speak to any time you use a name in a commercial venture. . . . What if you use a historical figure's name in a historical novel? Or other games, like Trivial Pursuit? How about 'Jeopardy!'? Would they be liable as well? That seems to be the logical consequence of this."
Indeed. And even more astonishingly, MLB took exactly the opposite litigation position in Gianfriddo v. MLB, 2001 Cal. App. Lexis 3089, where former players sued the league for violating their right of publicity. There the court quite sensibly decided that putting someone's name in a program, and publishing stats about them, did not violate that person's right of publicity.
About the only basis for a claim here seems, to me, to be some chimerical engrafting of the Seinfeld quiz book case onto right of publicity laws (perhaps vitalized, ala the Oparin hypothesis, in a miasmic fog of misappropriation law). Let's hope that doesn't occur...and that courts take this suggestion from Judge Posner seriously:
[C]opyright owners systematically make improperly broad claims to their rights. The book, DVD, or baseball-game broadcast that comes with a notice stating that no part of the work may be copied without permission is, in fact, in violation of the doctrine of fair use (for which one doesn't need permission). Posner argues that when a copyright holder affixes a warning on copies of his work that "grossly and intentionally exaggerates the copyright holder's substantive or remedial rights, to the prejudice of publishers of public-domain works, the case for invoking the doctrine of copyright misuse" has been made.
Jason Mazzone makes a similar argument against copyfraud. But anyone want to stand up for MLB?
Posted by Frank3 on May 16, 2006 at 06:10 PM | Permalink
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About a week ago, the New York Times ran a story about the ongoing right-of-publicity lawsuit between Major League Baseball and CBC Distribution Marketing Inc.s CDMsports.com. (You can read the complaint here, courtesy of Hearsay.com.) T... [Read More]
Tracked on May 22, 2006 10:18:02 PM
Comments
I don't really want to argue for MLB's side, but I wonder if they might have any sort of estoppel argument since the company used to pay for the license. Not to say that because they once paid they must always now pay (which would be like saying that the mob could now legally collect protection money from people who had once paid it) but it might show the contours of the cultural expectations surrounding the issue. "See, people used to think they should pay for this kind of thing. That's the norm the law should follow."
Posted by: Cathy | May 16, 2006 8:12:31 PM
Cathy: very good point. There's a nice recent 2d Cir. case that, at least w/r/t copyright, may get them out of that bind. It says:
"a publisher’s willingness to pay license fees for reproduction of
images does not establish that the publisher may not, in the
alternative, make fair use of those images. Campbell, 510 U.S.
at 585 n.18 (stating that “being denied permission to use [or pay
license fees for] a work does not weigh against a finding of fair
use”)."
at
http://caselaw.lp.findlaw.com/data2/circs/2nd/052514p.pdf
Posted by: Frank Pasquale | May 16, 2006 8:16:07 PM
Why don't the baseball players themselves assert rights in their own publicity? It would be interesting to see whose side they'd come down on - and to hear an articulate player, like Schilling or Jeter, make the case for their choice. (I think they'd figure out pretty quickly that their fans' commitment to the players is only enhanced by fantasy baseball. Maybe the players would want a cut of the action - but maybe that wouldn't be inappropriate.)
Cathy, I think your point is really good. But the NYT article also indicated that MLB has been systematically reducing the number of licenses it allows. Do you think there should also be an argument that MLB shouldn't be allowed to drop the number of permitted licenses below a certain threshold? (i.e., "people have always been able to pay for these licenses, so they should continue to be allowed to pay for them.")
Posted by: savitri | May 16, 2006 8:23:46 PM
In one class action my old firm was prosecuting, we planned on contacting class members, among other members, via ads in the newspaper and on the radio. One of the defendants was a major east coast pharmacy chain; let's call them "Duane Reade". Their lawyers -- let's call the law firm "Putney Twombley" and the lawyer "Dan Murphy" -- bombastically asserted that we couldn't use their name in ads without their permission. We were spooked for a bit but then discussed it among our firm and realized they were completely full of it. We told them to go jump in a lake and we'd mentiomn the name "Duane Reade" anytime we pleased. They backed off, which just infuriated me more, because their hasty retreat meant they KNEW they were full of it, and they were just making up entirely unsupported legal positions just in the hopes we were complete ignorami. (Fortunately, this all had a happy ending: of the three major defendants, the other two were represented by more talented law firms, so they settled earlier, before any merits ruling; Putney kept their clients in the game later, yielding a loss on summary judgment.)
Posted by: Scott Moss | May 16, 2006 11:06:07 PM
Interesting anecdote, Scott. I'd like to see some study of the "agency problems" afflicting corporations hiring outside counsel...the billable hour compensation metric seems to invite overwork on a case. On the other hand, perhaps legal services are as much a "credibility good" as health care...the customer has a really hard time assessing quality.
Posted by: Frank | May 17, 2006 7:39:39 AM
Right, Frank -- though the market at least partly works. I know of two major firms in New York that are just really low-quality, but they get clients by talking tough ("we'll never settle," etc.). That works to get clients -- but not to retain them. The list of companies that have fired these two firms is pretty long. At least on the defense side of employment law (my field), firms that really prosper live on repeat business, not on suckering in some hapless employer with tough talk that is ultimately counter-productive, because it leads to higher legal bills and rejections of good settlements.
Posted by: Scott Moss | May 17, 2006 9:08:05 AM
Frank -
The right of publicity is a mess. Many of us have suggested that its theoretical foundation is deeply flawed, and some of us have offered alternative ways of thinking about the problem. And I think Eugene is right that there are serious First Amendment questions that might be implicated in this case. But even on the terms of the right of publicity as it currently stands, MLB should lose this case. A right of publicity claim argues that the defendant's use appropriates value from the plaintiff's identity. The basis for those claims has always been that celebrities work hard to cultivate their images. Whatever value the fantasy league teams are extracting here cannot seriously be thought to come from the players personas - fantasy league players don't care if Alex Rodriguez is a popular guy or looks good on tv; they care only what his statistics are. Even if we think that celebrities should be rewarded for developing their images, surely they are adequately compensated for their work to bring up their batting averages.
Mark
Posted by: Mark McKenna | May 17, 2006 11:38:51 AM
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