Get Real: The Debate Over Online Fantasy Sports
The emergence of fantasy sports began around 1980 with the creation of Rotisserie Baseball leagues, in which participants would draft teams from a list of actual Major League Baseball players, and follow these players throughout the season to compile a score. Participants would compete against each other, comparing the numbers of their imaginary teams, and marvel over their players’ performances. It was not that long before this hobby spread to other sports and became a widespread phenomenon, with fantasy games in hockey, basketball and football. With the Internet boom in the 1990s creating an even-more-accessible source of news and scores, fantasy sports became an increasingly popular trend and a near-addiction for fans.
Not surprisingly, the boom of fantasy sports games has seen its fair share of legal controversy. While perhaps not obvious at first glance, the growing interest in fantasy sports implicates various areas of intellectual property law, including copyright and trademark as well as state law rights of publicity. Many athletes insist that the statistics used by fantasy sports participants belong to the athletes, and should not be used freely by others without compensation. These athletes claim a right of publicity for the use of their likeness and statistics.[1] While there is no federal protection for an athlete’s right of publicity, this right is protected by state law.[2] One of the most famous cases to deal with the right of publicity was White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th. Cir. 1992), in which the famous TV host, Vanna White, sued Samsung Electronics for running an advertisement depicting “a robot, dressed in a wig, gown, and jewelry, which [was] consciously selected to resemble White’s hair and dress.” Id. at 1396. White alleged that the ad violated her right of publicity under California law. The district court granted Samsung’s motion for summary judgment, but The United States Court of Appeals for the Ninth Circuit reversed. Reasoning that “the right of publicity is not limited to the appropriation of name or likeness,” the court of appeals held that White had, in fact, alleged facts that Samsung had infringed her right of publicity. Id. at 1399. Athletes and sports teams alike have advanced similar arguments, insisting that fantasy league participants infringe their rights of publicity through the use of their likenesses and statistics.
While some have argued that these athletes and professional sports teams present a somewhat compelling argument, courts across the country have suggested that allowing such an expansive reading of the right of publicity is dangerous. These courts point to First Amendment protections against restricting the free expression of others and note that the First Amendment may be used as a defense to various right of publicity claims. Recently, the United States Court of Appeals for the Eighth Circuit considered a First Amendment argument in C.B.C. Distribution and Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). C.B.C., a company that sold fantasy sports products, brought an action for a declaratory judgment of non-infringement against Major League Baseball “to establish its right to use, without license, the names of and information about major league baseball players in connection with its fantasy baseball products.” Id. at 820. The court held that while C.B.C. did, in fact, violate the players’ state law rights of publicity, the overarching First Amendment right of freedom of expression trumped any state law rights enjoyed by the players. Moreover, the court held that “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” because C.B.C.’s use of the information did not preclude the baseball players from earning “large sums from endorsements and sponsorship arrangements” and did not “create a false impression that some particular player with star power’ [was] endorsing CBC’s products.” Id. at 824.
Those who endorse the First Amendment argument insist that granting teams and athletes intellectual property rights in their statistics and numbers is a slippery slope towards infringement of many other First Amendment rights. Additionally, it seems that the fans are what make the statistics valuable in the first place and so allowing the fans to have a little fun with these fantasy teams does not harm the athletes and teams.
The issue of online fantasy sports most likely will not be resolved anytime soon. As long as the fantasy sports industry is booming, and fantasy sports participants are making money, there will be those athletes and professional teams who insist that they should enjoy intellectual property rights in their likenesses and statistics.
[1] J. Thomas McCarthy, The Rights of Publicity and Privacy § 1:3 (2d ed. 2000).
[2] For a discussion of the need for a federal right to publicity, see Risa J. Weaver, Online Fantasy Sports Litigation And The Need For A Federal Right Of Publicity Statute, 2010 Duke L. & Tech. Rev. No. 2 (2010), available at http://www.law.duke.edu/journals/dltr/articles/2010dltr002.html.
