Not all intellectual property involves copyrights, patents, or trademarks. Many states recognize a “right of publicity” that allows a person — or in some cases a decedent’s estate — to control the use of one’s name, likeness, and image for commercial purposes. As with trademarks, the state’s interest is less in protecting consumers from fraud and more about allowing individuals to extract rents from third parties who commit no actual aggression.
A case in point is the ongoing skirmishes over “fantasy” sports. Various forms of these games — which rely on current sports statistics — have been played since the 1960s. Today, the most popular form of fantasy sports are online leagues run by media companies like Yahoo. Once these companies started to realize a profit on fantasy sports, the real sports leagues wanted a piece of the action. This begged the question: Are player names, information, and statistics the “intellectual property” of the players vis-a-vis the right of publicity?This week, Yahoo sued the union representing National Football League players (and its marketing subsidiary) to preempt such “right of publicity” claims. The NFL Players Association has long claimed an exclusive control of the commercial licensing of player names and likenesses. Up until now, Yahoo has paid the NFLPA for the “right” to use such information in connection with its fantasy football game. After the latest agreement expired, Yahoo informed the NFLPA it would no longer pay. The NFLPA threatened to sue, which prompted Yahoo’s preemptive lawsuit.
The timing and location of Yahoo’s lawsuit is not coincidental. In 2007, the Eighth Circuit Court of Appeals (based in Minnesota) ruled that the Major League Baseball Players Association could not assert a state-law right of publicity to stop a company from offering a fantasy baseball product without paying royalties to the union. The court said that the First Amendment trumped any state-law right of publicity argument. Relying on this decision, the district court in Minnesota ruled last month that the NFL could not require CBS Interactive to pay a licensing fee to use “player names, statistics, images, and other information” in its fantasy football game.
Similarly, Yahoo argues that no right of publicity has been violated, but “[t]o the extent that a right of publicity recognized within the United States is violated or infringed by Yahoo’s operation of a sports fantasy games business, the First Amendment to the U.S. Constitution supersedes the right of publicity.”* Yahoo also argues that federal copyright law actually prevents the NFLPA from asserting any intellectual property rights in mere names, statistics, and data. (The Eighth Circuit declined to rule on a similar claim in the MLBPA case)
The sports leagues and player unions feel that they’re being deprived of rightful compensation when companies like Yahoo operate “unlicensed” fantasy games. But it’s the proliferation of fantasy games that’s helped sustain and grow interest in the sports themselves, which translates into higher revenues for teams and higher salaries and endorsement compensation for players. Fantasy football, in particular, has transformed the NFL from a collection of local teams into a truly national business. Fantasy sports haven’t taken away from the pie; they’ve made it bigger for everyone.
Furthermore, there’s nothing to prevent the sports leagues or player unions from “licensing” and marketing their own fantasy games. The issue is whether they should be allowed to outlaw any competing products that rely on publicly available data. Unlike a copyright or patent, there’s not even a claim of authorship or creation. A player doesn’t “create” his statistics; the stats merely quantify past events.
*This rests on the view that the First Amendment applies to the states, as the “right of publicity” is a function of state and common law.
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This has been an issue with tabletop (cards & dice) statistical sports games as well. Licensing fees have nearly killed some good small developer/publishers (and may have actually killed others of which I have no knowledge).
“*This rests on the view that the First Amendment applies to the states, as the “right of publicity” is a function of state and common law.”
While the 2nd Amendment is strangely worded, you would think that the 1st Amendment is the clearest piece of language in the entire Constitution, especially on federalism-”Congress shall make no law…”.
Thinker wrote: “While the 2nd Amendment is strangely worded…”
The 2nd Amendment is quite clear; what part of “the right to keep and bear arms shall not be infringed” is hard to understand? It means that people have the right to keep and bear arms, and not only Congress, but also no other political body on any other level (state or local), has any say in the matter. This right is guaranteed to the people.
Please, keep the second amendment comments to my prior post. This post has nothing to do with the right to keep and bare arms.
I was simply using the 2nd Amendment as a point of contrast with the 1st Amendment on the subject of federalism. S.M. Olivia’s post on the 2nd Amendment does contain a lengthy discussion of its language, history, and meaning in the comments.
if such president is set i don’t see how any news paper or other outlet would be able to operate.
Gotta love the fourteenth amendment – not even the second compares in legal ambiguities.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
The first amendment seems pretty straight forward–congress is prohibited, but where does it say anything about states? Sure, we have developed the idea that states cannot disobey the first amendment injunctions, but that is not written there.
There are a lot of directions the constitution can be stretched (the interstate commerce clause has been stretched to silly putty proportions). Should we interpret the constitution to fit our convenience, or should we follow it to the letter and amend it if we do not like it?
If the problem with the Federal government is that our self-styled “leaders” ignore or interpret the constitution as they wish, then are we not validating their actions by choosing to support our own interpretations? That implies that might really does make right if we embrace the same approach but differ only in who holds the reins of power.
So what does the first amendment apply to? The congress? The states too? Do we fear the straw man or boogie man arguments about state religions and censorship? Would it be a problem to move to a different state to enjoy true liberty even if some states chose repressive laws?
Frankly, I would take my chances with a constitutional republic composed of a weak federal government and fifty states with truly competitive political approaches. We talk of free markets–what better system than a free market for state governments? The states that best serve the citizens would win economically, socially, and every other ally you can name.
As an Australian, I know very little about your amendments, other than that you have a lot of them. But isn’t the 2nd the one that starts with “The right of the states”, thereby confusing things, since some people think it is meant to apply only to state militia?
Alternatively:
Obviously this further compounds the opaqueness of its wording.
As to you remark about “a lot of [amendments]“, I’d recommend you avoid the constitution of Alabama for the sake of you health(798).
David Spellman: Hear, hear!
I like the proposed government, but it seems rather like the present international system-a (very) weak United Nations and 190 different competing states. Right now, if Liechtenstein instituted a wholly free market and granted all manner of personal freedoms, but Germany wanted the resulting prosperity, Germany could easily overpower the smaller country. The threat of intervention by the overseeing government or other states might discourage Germany, but if history is any guide, that’s not good enough (see also modern Africa). You need a balance in the federal government’s power so that the states’ liberties are not infringed by either the federal government or the competing states. And you still need some safeguard to prevent arbitrary use of power, yada yada yada, the usual problems with government.
Still, as potential governments go, that’s a pretty good one.
Biotube: What do you have against Alabama?
Our constitution is only the longest legal document in the world!
And its actually only 797 amendments. For some reason, one number was skipped. No one has dared to search through and figure out which yet.
Very interesting topic. I am a fantasy player and a wannabe fantasy entrepeneur. Unfortunately, where I live, in Spain, rules are even more strict. Just as an example of something similar, the association of music authors (SGAE) has a huge power in here with the approval of the government. Recently, there was a music festival with well known artist who performed for free in order to raise money to help a kid with a strange illness, that only in the USA can be cured. Some of those artist sung other artist’s songs -some of them already dead-. SGAE charged around 5.000 euros to the poor kid’s family. I cannot think many things more disgusting than that.
A few years ago, I tried to set up a fantasy league in soccer. I phoned to the association of professional clubs -mistake¡¡¡- and they threatened me with big fines in case I had decided to go on.
I joined the Fantasy Sports Trade Association (http://www.fsta.org/). They have really good stuff in their website. FSTA is fighting against this situation. Nevertheless, not from a very libertarian point of view, as, for instance, they accept that pictures shouldn’t be used, just numbers and facts. An assists by Chris Paul is public, his picture is not. Anyway, they have become a good lobby fighting against player’s right to own their stats.
Thank you for the well-written article. Whenever I hear somebody talk about I.P. I always think “Imaginary Property” and it brings the issue into focus.
A bit of a nitpick: while it has come into common usage with the incorrect meaning, the phrase “begging the question” is a actually a form of logical fallacy. Instead, you should use the phrase “raised the question”.
if such president is set i don’t see how any news paper or other outlet would be able to operate.
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