Comments on: A different kind of moneyball … http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/ Academic commentary about patent law, i.p. law, creativity, and more Sat, 27 Feb 2010 17:04:51 -0800 http://wordpress.org/?v=2.8.5 hourly 1 By: The Fire of Genius » MLB’s publicity claim against fantasy baseball site strikes out http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/comment-page-1/#comment-2453 The Fire of Genius » MLB’s publicity claim against fantasy baseball site strikes out Wed, 09 Aug 2006 14:00:10 +0000 http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/#comment-2453 [...] In late May, I wrote a post about Major League Baseball’s “right of publicity” claim against CDMsports.com, a fantasy baseball website. Yesterday, ruling on cross-motions for summary judgment, the U.S. magistrate judge in the case rejected Major League Baseball’s publicity right claim. You can download a pdf copy of the court’s 49-page opinion here, from the CDMsports.com site. [...] [...] In late May, I wrote a post about Major League Baseball’s “right of publicity” claim against CDMsports.com, a fantasy baseball website. Yesterday, ruling on cross-motions for summary judgment, the U.S. magistrate judge in the case rejected Major League Baseball’s publicity right claim. You can download a pdf copy of the court’s 49-page opinion here, from the CDMsports.com site. [...]

]]> By: Joe http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/comment-page-1/#comment-41 Joe Tue, 23 May 2006 04:37:56 +0000 http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/#comment-41 Frank's point is a good one, in the sense that the First Amendment escape hatch is probably flexible enough to let fantasy baseball slip out of sight, if one wants. But that same flexibility is also a problem, in the sense that it makes it quite a bit harder for folks on both sides of the table to make a good prediction about how a court might view the case (if it comes to litigation). The flexibility may also indicate that the right of publicity doesn't have a good internal theory about its own stopping points. That would worry me a bit. Frank’s point is a good one, in the sense that the First Amendment escape hatch is probably flexible enough to let fantasy baseball slip out of sight, if one wants. But that same flexibility is also a problem, in the sense that it makes it quite a bit harder for folks on both sides of the table to make a good prediction about how a court might view the case (if it comes to litigation). The flexibility may also indicate that the right of publicity doesn’t have a good internal theory about its own stopping points. That would worry me a bit.

]]> By: Frank http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/comment-page-1/#comment-39 Frank Tue, 23 May 2006 02:37:38 +0000 http://www.thefireofgenius.com/2006/05/22/a-different-kind-of-moneyball/#comment-39 Why would the "defendant’s right to free speech" only be coextensive with "sports reporting," and not running a fantasy league? Surely if a St. Patrick's Day Parade, contentless political ads, and minimalist art amount to free speech, a court could construe the rotisserie league as a public forum for users to express their opinions about the comparative worth of various players. I'm not saying I agree with the expansion of 1A protection I'm citing here. But I'm just saying that the First Amendment goes pretty far here...as I recall from the Tiger Woods right of publicity case, a "velvet elvis" type painting primarily of Tiger (with ben hogan and a few other greats in teh background) amounted to "free speech." I'm not disagreeing with most of your legal analysis...just suggesting that there's room in the precedent for courts to knock out claims like this...we don't necessarily need to rely on legislatures. Why would the “defendant’s right to free speech” only be coextensive with “sports reporting,” and not running a fantasy league? Surely if a St. Patrick’s Day Parade, contentless political ads, and minimalist art amount to free speech, a court could construe the rotisserie league as a public forum for users to express their opinions about the comparative worth of various players.

I’m not saying I agree with the expansion of 1A protection I’m citing here. But I’m just saying that the First Amendment goes pretty far here…as I recall from the Tiger Woods right of publicity case, a “velvet elvis” type painting primarily of Tiger (with ben hogan and a few other greats in teh background) amounted to “free speech.”

I’m not disagreeing with most of your legal analysis…just suggesting that there’s room in the precedent for courts to knock out claims like this…we don’t necessarily need to rely on legislatures.

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