If you haven't read The Numbers Game, there's an interesting chapter about how there was a similar fight over the use of statistics in NBA broadcasts by game announcer. It's way too much to summarize here, so I'll sum it up like this: I highly recommend reading the book, for this and a ton of other reasons. It's absolutely fascinating.

I second that opinion.

And the stats should be owned by nobody really, it's just a collection of facts. George Washington was the first president, who owns that knowledge? No one, it's just a fact. A-Rod hit 57 HRs a few years ago, who owns that knowledge? No one, it's just a fact.

As I pointed out at BTF, and will reiterate here, MLB's argument isn't that they own the statistics per se, but that:

1. the statistics are an integral part of the player's identity, and
2. the player has the right to profit from the use of his identity for commercial gain, under his right of publicity (which per agreement by the MLBPA and MLB)

MLB would certainly lose an argument that they own the statistics, but with the argument that they are actually presenting, they have a chance to win if they can show the court that the stats are actually proxies for the players themselves - and that the fantasy services are building their business not around the stats, but around the players whose identities are underneath the stats. If they can convince the court of that, they'll win - and I think there's a reasonable chance that MLB can do just that.

I think MLB's case is pretty weak -- The question is whether or not the player can not so much profit himself form his name, but prohibit all use of his name by onyone esle who thereby makes a profit. The case of a newspaper which ran a poll about The New Kids On The Block is in many ways instructive: The New Kids couldn't keep the paper from doing so, despite the fact it was pretty patently not a news story. (of course it is more complicated.)

The fantasy use of the names is kept to very close to the minimum necessary to identify a player. MLB's argument is clearly an end run around the uncomfortable legal fact that it cannot own the facts about the game -- and I think it extremely likely that the courts will reject MLB's argument. The consequences otherwise are tremendous -- could papers be kept from reporting how much money an acotr or CEO made? etc etc.

Many local leagues rely on a stat service to track our stats for us. MLB has gone after those firms as well and clearly it is only the stats that are important. The player associated with those stats gains (or not) from having his name associated with those stats in the public domain.

Arguably, if ESPN can only report that somebody hit a homerun in the bottom of the 9th to give Atlanta a 4-3 win over the Pirates, the player and the fan are both harmed. ESPN should not have to pay MLB or the players association for reporting that Marcus Giles hit the homerun.

Capybara - the examples you cite are a bit more complicated because of the legal status of the press (i.e. the First Amendment). As I see the issue, fantasy baseball services are much closer to to other non-media profit-making enterprises that use players and stats to sell a product (like, say, video games or trading cards).

The more interesting question, in my mind, is why MLB is doing this. I mean sure, they may have a legal claim, but isn't a phenomenon that draws thousands and thousands of people to pay much more attention to baseball than they otherwise would ultimately good for the game, and for MLB's bottom line? This suit strikes me, from a business standpoint, as extraordinarily short-sighted. But then, it is MLB we're talking about.

I read the MLBPA's Memorandum in Support of its Motion for Summary Judgment in this St. Louis case this morning on the train into work, and, I gotta say, I'm worried that they have a compelling argument regarding the right to publicity. Note, first off, that the MLBPA intervened to protect the players' interests in all this, and that MLBAM is apparantly letting them take the lead in fighting the lawsuit. Further, MLBPA agreed in 2005 to let MLBAM be the sole fantasy baseball licensor for five years, so ownership (MLBAM) and the players (MLBPA) are on the same page on this.

Why I'm worried: there are a long line a cases (all cited in MLBPA's SJ memo) that support the idea that you can't use someone else's identity for your own commercial benefit. MLBPA is arguing that the stat lines put up by individual players, when grouped with their name and team, are part of their identity and cannot be used for financial gain without their permission. The numbers of stats alone, without the identifying characteristics don't really mean anything, and that's MLBPA's point, they're only worthwhile in relation to the players involved. I'm simplifying, but that's the gist of it. And lots of courts in similar circumstances involving pro athletes have agreed; including, most recently, a federal district court in Florida holding that a website couldn't use football players' stats in its online fantasy game.

It's important to realize that this idea of the right of publicity does not apply to the news media or to people using the stats for non-commercial purposes. Courts have explicitly carved out legitimate news companies from this doctrine, and if you and your buddies want to play fantasy baseball doing the stats yourself (old skool Roto style) for free, MLBPA can't stop you. You just can't make money off someone else's identity without their permission.

I'm worried because I'm afraid this is yet another example of MLB (and the MLBPA) being right but hurting the game. My nightmare scenario is MLBAM charging outrageous fees to the fantasy operators and the fantasy players getting stuck with the bill, thereby depressing interest in fantasy baseball specifically and baseball generally. Which is not what baseball needs.

Friejose - is it the case that the "right of publicity" is a state law (probably common law) cause of action (i.e. there's no federally protected right to publicity/property right in one's public persona? If so, wouldn't that make it more difficult for MLB to make this lawsuit have the broad effect it hopes for?

I'm legitimately curious - I don't have a whole lot of background in IP law.

Friejose, thanks for the excellent, informed comment. I agree with your worries. If MLBAM had been smart, they would have supplied the licenses at a very low price, and slowly upped it over time. That way, interest would grow, and the slow increases, along with more fan interest would increase their revenues greatly over time.

David D. -- with the caveat that I don't know a whole lot about IP either, it appears that the so-called right to publicity is an adjunct of the right to privacy. So yes, a common law creation with roots in the Constitution, at a minimum. According to a very good discussion over at Baseball Primer Newsblog, California also has a statutory right to publicity. The CBC v. MLBAM case involves Missouri law, as the federal court applies the state common law where it sits on substantive issues, broadly speaking, unless it is a federal statute or federal law or something like that involved in the case.

David P. -- great site and thanks for the compliment. To paraphrase 'EEI callers, long time lurker, first time poster. I agree, I sure hope MLB doesn't wreck this for everyone.

re: copyright issues in fair use of player names and statistics

I don't believe Maury Brown understands the issues as framed properly in the CBC case brought in the district court.

The older ballplayers case of Al Gionfriddo et al. sued for their rights prior to 1947 under their personal rights to a right of publicity, which basically is a state tort which only exists in California, and maybe also in NY. This is a right of a prominent or famous individual to exploit his fame and public status for his own benefit, e.g. a right of publicity. This is a California right by and large accorded to celebreties. It has not been accorded to athletes nationally in sports law, and accordingly the court did not recognize it in the 2001 case, holding that the pre-1947 stats were "baseball history" and denying the oldtimers claim.

The current issue is much different, it is whether the baseball players ass'n, major league baseball and the ass'n they license to can copyright or otherwise play intellectual property protections on, and exlclude others from, the use of all statistics from seasons, in association with the players' names, likenesses etc.

On first examination, one would say yes they could, since they own the rights to exploit the rights to the player in terms of merchandising and so forth. But then again, there is no general right of publicity as to sports figures, and no one has ever claimed a right of copyright to a sports figure's likeness leaguewide. nor can you patent it. And once the season is in the books, it's history like the civil war, and does follow the 2001 decision in certain ways.

It seems to me that the league has the right to exclude fantasy players while the season is still active; but once the season is in the books and has passed into history, the league's rights are de minimis and the season has passed into history.

A second question is use of the player's images or likenesses. These clearly cannot be used without appropriate permission or compensation at any time to the player's association or to the players, depending on who has permission to license them.

Thus, while a fantasy league might be able to use mere names in association with a historical replay, they can't use likenesses or photos except within the fair use doctrine.

Whatever the outcome, it will certainly be interesting.

--arthur john kyriazis
--philly