Eighth Circuit's "Public Domain" Rationale Provides No Workable Standard for Right of Publicity Claims

Yesterday, the Eighth Circuit Court of Appeals issued its 13-page ruling in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. and affirmed the ruling of the United States District Court for the Eastern District of Missouri. The full opinion is available here.

In Missouri, the elements of a right of publicity action include: (1) That defendant used plaintiff's name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage. The district court concluded that the evidence was insufficient to establish the "identity" and "commercial advantage" elements. But the district court was clearly wrong on that conclusion as a matter of law because there is no dispute that fantasy league operators are using the players' names for a commercial advantage in the games they are selling to the public. The Eighth Circuit disagreed with the district court and correctly found that the players established a cause of action for right of publicity: "Because we think that it is clear that CBC uses baseball players' identities in its fantasy baseball products for purposes of profit, we believe that their identities are being used for commercial advantage and that the players therefore offered sufficient evidence to make out a cause of action for violation of their rights of publicity under Missouri law." I'm glad to see that the Eighth Circuit put to rest the flawed notion that fantasy leagues are just using statistics and not players' identities.

The court of appeals held that the First Amendment nonetheless trumps the right of publicity action because "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone." (emphasis added) Actually, it would NOT be strange law. I can assure you that there is no authority for that proposition in the context of right of publicity actions, and that's because it provides circular reasoning. Public domain, which is an intellectual property concept, simply means the public has a right to certain information, documents or writings because nobody else has rights to it under the law, for example under right of publicity law. Wouldn't it be "strange law" to say that individuals have no right of publicity if their names are in the public domain? Famous people, by virtue of their fame and fortune, are, by definition, in the public domain. Indeed, the more famous they are, the more they are in the public domain, and thus, the more likely it is that third parties will desire to use their names for commercial gain. In fact, that is the basis for even recognizing right of publicity as a cause of action.

The court's "public domain" reasoning is simply not a workable standard for evaluating when the First Amendment trumps a right of publicity claim. How is a court to use this standard in the context of other uses, for example use of players' identities in baseball cards, in video games, or on a cereal box? At least the court of appeals put to rest the notion that a picture somehow strengthens a right of publicity cause of action over merely using the name (which did seem to influence the district court). In support of its public domain rationale, the court relied on the Cardtoons case involving Cardtoons' parody trading cards featuring caricatures of players with humorous commentary about their careers. But that case is clearly distinguishable because the use by Cardtoons involved social commentary on public figures, the type of creative expression protected by the First Amendment (another case along those same lines is the Tiger Woods case which involved the defendant painter's expression through art work).

The court of appeals also justified its holding on the grounds that "major league baseball players are rewarded, and handsomely, too, for their participation in games and can earn additional large sums from endorsements and sponsorship arrangements." This justification seems odd to me for a few reasons. First, it has absolutely nothing to do with First Amendment principles. Second, the court is making its own subjective assessment about acceptable ways that certain individuals should be able to make money. The court provides no standard for determining when it is acceptable for players to be compensated in a particular context. Third, while the court suggests that players should be able to make money from endorsements and sponsorships, it obviously begs the question as to why the court's public domain rationale wouldn't trump that right as well. How is a court to analyze baseball card and video game use under this standard?

So instead of clarification involving the First Amendment and right of publicity, I walk away from the court's opinion even more confused. I wonder if the Supreme Court would endorse the Eighth Circuit's public domain standard?

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