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.) The story caught Frank Pasquale’s eye, and he posted about it at PrawfsBlawg; ditto for Kaimi Wenger at Concurring Opinions.

Both Frank and Kaimi expressed some dismay at Major League Baseball’s right of publicity claim against CDMsports, a fantasy baseball service website. Frank, riffing on MLB, called Baseball’s demand for royalties for the use of named palyers’ statistics “Misusing Law Brazenly,” as well as “bizarre” and “astonishing[].” Kaimi, for his part, links the fantasy baseball story to Kevin Kelly’s meditation on the universal library, to which I’ve linked previously. Like Frank, I reacted to the story with deep skepticism about the strength of MLB’s royalty claim. Not knowing that much about right of publicity law, however, I thought I would investigate a bit. It turns out that MLB’s claim appears to have some merit in the expansive doctrine that the right of publicity has become. So much the worse for the right of publicity.

Could this dispute be a reductio ad absurdum that prompts the courts to prune back the right of publicity? More after the jump.

First, some background on the fantasy sports business: Wikipedia, in a brief entry on fantasy sports, offers this definition: “A fantasy sport is a game where fantasy owners build a team that competes against other fantasy owners based on the statistics generated by individual players or teams of a professional sport.” To play, then, all one needs are the real players’ names and performance statistics. I gather that people have been doing this for years, with pen and paper. Computers can, of course, make the whole process more efficient.

According to this September 2004 story at c|net, the Internet has launched fantasy sports to a new level of enjoyment and interest by automating and interconnecting what had, before the web, been a more paper-based, number-crunchy pursuit.

Once a pursuit of number nerds and the statistically obsessed, fantasy sports have burst into the mainstream largely because of the Internet. Before the Web, fantasy players would gather after work and pour through daily papers and sports magazines to compile their scores. But now the Internet does all the grunt work in real time.

Every year there are more fantasy players and greater revenue derived from the pursuit. Web sites such as SportsLine, Yahoo and ESPN let people set up leagues for free, but also charge more than $100 to set up groups with more bells and whistles.

Most companies do not break out their fantasy sports revenue, but most hint that the business continues to grow. As one indicator, SportsLine last quarter reported its subscription revenue, mostly from fantasy leagues, grew 40 percent from the previous period in 2003 to $1.8 million. For 2003, this revenue jumped 34 percent from 2002 to $15.9 million.

Similarly, according to this December 2005 story at CNNMoney, “[w]ith upwards of 15 million players in the U.S., fantasy sports are a billion-dollar market. CBS SportsLine, for example, generated $15 million in sales from 1.3 million fantasy football customers last year.” And “[s]ince fantasy players tend to linger on sites — reading player profiles, pondering their starting lineups, and sending messages to others in the league — they attract blue-chip advertisers.” It’s not too hard to see why MLB would prefer to have fans playing fantasy baseball at the websites of its licensees (or at its own site), and why, according to the New York Times story, MLB’s licensees “have paid Major League Baseball Advanced Media approximately $2 million apiece this year for licenses to display players’ names and photographs, team logos and varying add-ons like video highlight clips.” This MLB-derived content must make the licensee sites more attractive for many fans.

But what about CDMsports? According to the Times story, “[i]t runs its customers’ leagues without player photographs (which are controlled by players in nonjournalistic commerce) or team logos (which are trademarks owned by the major league clubs).” Interestingly, CDMsports had licensed the players’ names and stats from 1995 to 2004. The relationship ended, the Times reports, as MLB “decreased its number of licensees from dozens in 2004 to 19 last season to 7 this year, focusing on large media outlets like CBS SportsLine.”

Can CDMsports keep using the players’ names and stats anyway, without a license? That’s the core issue in the case.

Right of publicity law is state statutory or common law. Missouri, where the case is pending, has a common law right of publicity. And the Missouri Supreme Court appears to follow the Rest. (3rd) Unfair Competition, secs. 46-49, in mapping the contours of the right of publicity. See, e.g., Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) (en banc) (upholding former NHL player Tony Twist’s right of publicity claim against the publishers of the comic book Spawn). According to the Missouri Supreme Court, the right of publicity is broad indeed: “To summarize … the elements of a right of publicity action include: (1) That defendant used plaintiff’s name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” Id. at 369.

Of course, at this level of generality, the right of publicity is violated by straight news reporting. Take, for example, any one of the many stories about the allegations that Barry Bonds used unlawful steroids to enhance his batting performance. Doesn’t the story violate the right of publicity? The newspaper that published the story uses Bonds’ name as a symbol of his identity, (almost certainly) without his consent, and with the intent to obtain a commercial advantage — namely, the advantage of more paper sales (or, for an online venue, more traffic for advertisers).

What gets us out of this collision between the right of publicity and the First Amendment? Well, the courts have created a First Amendment escape hatch. In Missouri, it’s a balancing test that “weigh[s] the state’s interest in protecting a plaintiff’s property right to the commercial value of his or her name and identity against the defendant’s right to free speech.” Doe, 110 S.W.3rd at 372.

In light of the foregoing, it’s no surprise that in the fantasy baseball dispute, MLB focuses on the money-making aspect of the CDMsports venture, while CDMsports emphasizes the way in which its activities are similar to straight sports news reporting. The Times story quotes the CDMsports lawyer, Rudy Telscher, as saying, “We’re disseminating information to the public about baseball players no different than what a newspaper does.” It quotes a MLB executive as saying, of the unlicensed fantasy baseball service, “The business here is not publishing statistics. The business here is running a league.” Which analogy will the courts find more persuasive?

MLB seems to me to have the better of the facts. CDMsports is not just playing a sports reporting role. The strongest evidence of this, for me, is that I can get baseball player stats on the Internet for free (at sites like ESPN), but I have to pay a premium to use services like the CDMsports fantasy baseball platform (with fees ranging from $25 to $300 dollars, depending on the prizes and service available).

But the strength of MLB’s claim points up, for me, that the right of publicity is deeply problematic when it expands much beyond ensuring that third parties don’t deceive the consuming public into thinking that a celebrity endorses a product or service that she does not, in fact, endorse. For a highly informative and persuasive defense of the thesis that the right of publicity should be reformed to hew closely to a trademark-based model, see Stacey L. Dogan & Mark A. Lemley, What the Right of Publicity Can Learn From Trademark Law (2005), downloadable at ssrn.