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:
(1) Is the celebrity's name or likeness being used for a purpose other than news reporting, entertainment (i.e. movie, film), or literary?(2) If so, is the celebrity's name or likeness the "essence" of the product or service being produced such that the product or service is dependent upon such use for its existence?
UPDATE (2/29/08): USA Today's press release on the filing of the petition for writ of cert. states: "Using First Amendment and right of publicity arguments, MLBAM and the union have argued that players should be paid when their names are used for fantasy baseball leagues, in the same way players are paid when their names are used to endorse products. But the lower courts found that fantasy leagues' broad use of statistics isn't the same as faking an endorsement from a player and not paying him." However, USA Today's statement misconstrues both MLBAM's and the union's position as well as the lower courts' determinations, and implies that the right of publicity is only violated by fake endorsements -- which is simply false. Contrary to what is stated in this press release, neither the district court nor the court of appeals ruled as such, and MLBAM and the union are not comparing fantasy league use to endorsement use. USA Today conveniently omits that the holdings of the lower courts are inconsistent with the fact that players are paid for use of their names in non-endorsement contexts as well, such as trading cards and video games.
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