On Monday, the U.S. Supreme Court denied review of the Eighth Circuit case Major League Baseball Advanced Media v. CBC Distributing (Docket No. 07-1099). In that case, Major Leauge Baseball, the Players Association, as well as the NFL, NBA, NHL, NASCAR, WNBA, and PGA argued that they have the sole right to control the use of player (driver, golfer) likenesses and statistics for fantasy sports games. MLB-AM had lost twice: in the District Court for the Eastern District of Missouri and at the Eighth Circuit.
MLB-AM had argued that, under Missouri law, players had a right to managed how their likenesses are used, a right to managed their publicity. CBC argued that it had a First Amendment right to use this widely-available information, and that the First Amendment right trumped whatever claim the players had under Missouri state law.
The Eighth Circuit agreed, holding that the First Amendment right, when balanced against the state law claim, was more important. Important, I think, for the development of this law, the Eight Circuit said that MLB-AM's state law claim barely implicated that which Missouri had sought to protect: the right of an individual to protect his or her livelihood where the individual's likeness is central to the individual's ability to earn a living. It was telling, in my opinion, when the Eighth Circuit noted that ballplayers are "handsomely" reward for their work, can secure a living through endorsement deals, and that there is no chance inclusion in a fantasy sports game can be viewed as an endorsement of the game itself.
By not granting review, the Supreme Court let the Eighth Circuit's decision stand as an important statement of law on the issue of the First Amendment right to use information in the public domain, such as players' likenesses, statistics, and nicknames. It's a win for fantasy sports owners, but I think also a win for those of us who are concerned that the law of intellectual property is becoming too artist-, player-, and company-friendly.
That said, anyone interested in getting an MLB second-half league together?