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Baseball and Union Ask Supreme Court to Review Eighth Circuit's Fantasy League Ruling

By Rick Karcher, Michael McCann, Geoffrey Rapp, Greg Skidmore, and Howard Wasserman

Eric Fisher of Street & Smith's SportsBusiness Daily reported today that MLBAM and the MLBPA have filed a petition for a writ of certiorari to the U.S. Supreme Court, arguing that a series of prior lower court rulings involving First Amendment and right of publicity issues have created an inconsistent mess, and that "the appropriate legal test for balancing state-law publicity rights and First Amendment interest is a recurring and important question on which this Court's instruction is needed. ... The same use of a famous person's identity will be unlawful or constitutionally protected depending upon which jurisdiction first addresses that use an outcome that is fundamentally unfair, particularly to national businesses." Fisher notes that "[t]he vast majority of petitions for a writ of certiorari are denied, particularly for civil cases such as this, and MLBAM and the union are seeking to improve their chances by arguing to the broader need of a uniform standard for right of publicity disputes." As I have argued before, the Eighth Circuit's public domain standard is simply not a workable standard for determining whether the First Amendment trumps a right of publicity claim.

In my Penn State Law Review article, which can be downloaded from here, I propose that right of publicity claims can be assessed utilizing a "commercial advantage spectrum" that incorporates First Amendment considerations. At the purely "non-commercial" end of the spectrum, the primary purpose for the defendant's use of a celebrity's identity is not to gain any commercial advantage, e.g. news reporting uses, entertainment (i.e. movies, films) and literary works, which are privileged under the First Amendment based upon either the public's right to know or the public interest in free expression. At the other end, the purely "commercial end," the celebrity's identity is being used to demonstrate to consumers that the individual is associated with, or approves of, the user or the user's product or service, e.g. advertisements, endorsements and marketing efforts, which clearly violates the right of publicity.

The confusion arises with respect to those uses that fall somewhere in between the two ends of the spectrum, which can be referred to as "quasi-commercial" uses, i.e. video game use, trading card use and fantasy league use. In my article, I propose a standard that entails a two-part inquiry:

When the content for a product or service is based almost exclusively on the celebrity's name or likeness, it is unfair and not good policy to allow the producer to reap the full commercial value of the celebrity's identity. The most efficient allocation of resources is obtained in a free market by which producers of products and services compete for the right to use celebrities' identities, and the celebrities and producers are incentivized to negotiate licensing fees based upon what the market will bear for such use.

Full post as published by Sports Law Blog on February 28, 2008 (boomark / email).