I was surprised by the Supreme Court's decision not to grant cert in the so-called "fantasy baseball" case, officially known as C.B.C. Distribution v. Major League Baseball Advanced Media (MLBAM). The facts have been discussed in Rick's excellent prior blog and the failure of the high court to consider the case means: (1) a confused right of publicity standard with varying standards and "tests" in jurisdictions all over the country; (2) a confusion of whether right of publicity claims in similar to unfair competition clause to be "pre-empted" by federal law; (3) a lack of national standard; and (4) no precise balancing test between the First Amendment and the right of publicity.
I was one of those who agreed with the Eighth Circuit's ruling, which noted the existence of publicity rights in a player's identity under Missouri law, but concluded that the First Amendment took precedence. Despite the not-quite-ethical conduct by the fantasy league distributor (which decided to create a game after it lost its license), it still seems like a stretch for the economic rights to trump free expression. However, the opinion was unusually short for an issue of this magnitude, with little discussion of the precise standard of review in such a case.
The subject is important because of the expansion of the right over the last quarter century and the greater potential to utilize one's name and likeness in new media. What may be needed is for a similar case to occur in another jurisdiction producing a contrary result. With an open split of opinion, then the Supreme Court may be compelled to take up the case.
[Additional note: I am presenting a paper at the on the subject, proposing some new ideas to deal with this vexing question. The presentation takes place at the 2nd International Conference on Business, Law and Technology (http://www.iblt.eu/), which will be held at the Touro Law Center, Long Island, New York on June 17-19, 2008. I will summarize my ideas in a separate post.]
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