No 'right of publicity' in the names and statistics of major league baseball players.

Blackshaw, Ian

A US District Court for the Eastern District of Missouri ruled on 8 August, 2006 that there is no 'property right'--known in the US as a 'right of publicity' and known elsewhere generally as an 'image right'-in the names and statistics of Major League Basketball (MLB) players.

Dismissing a claim by the MLB, the Court held that there is no legal right to control the name and likeness of the compiled profiles of individual players, and, therefore, the commercial use of them by 'fantasy league' operators was quite lawful. In other words, such operators did not need a licence from the MLB; they were free to exploit the players' names and statistics for commercial purposes.

The Court went further and also held that, even if the players did have a 'right of publicity', the right of freedom of expression, guaranteed by the First Amendment to the US Constitution, takes precedence over any such right. In fact, as Prof John Wolohan as pointed in 'Sports Image Rights in Europe' (Blackshaw & Siekmann, Eds., 2005 TMC Asser Press, The Hague, The Netherlands), the First Amendment looks beyond written and spoken works as mediums of expression and, therefore, grants visual expression the same legal status as the written word.

The Court further held that the players' names and statistics, as used in the case by the St Louis based CBC Distribution and Marketing, which operates CDM Fantasy Sports, are not protected either by copyright under the US Federal Copyright Act of 1976.

Although the US Supreme Court held in the case of Zacchini v Scripps-Howard Broadcasting Co., 433 US 562 [1977], that a news broadcast of Hugo Zacchini' entire 15-second 'human cannonball' act, in which he was shot from a cannon into a net 200 feet away, was protected under Copyright Law, historically, the US Courts generally apply a broad reading of the news media exemption, because they do not consider that it is their role to determine which matters may or may not interest the general public.

In any event, each sports image rights case will be decided on its own particular facts and circumstances, and the MLB ruling-although only at District Court level--well illustrates the point that there is no automatic legal 'right of publicity' in the States, the home of sports marketing and the commercialisation of sports 'stars' and events.