C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP. – Affirmed on appeal; Player names and statistics are in the public domain

Monday, the 8th Cir. affirmed U.S. District Court Judge Mary Ann Medler’s ruling last year in C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP. At issue was a purely contractual issue, which we don’t care about here (CBC had a contract with MLB to use players names and stats. When it ended they kept using them), and an issue over the use of the names and likenesses of players, which we very much care about. At issue was whether CBC needed to pay Major League Baseball (or the MLB Players Association) for the use of player’s names and statistics. Last year, the district court said no – that the First Amendment trumped any right of publicity claim the players might have.

On appeal the 8th Cir. first laid out the elements of a right of publicity claim under Missouri law:

In Missouri, “the elementsof 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.”

While the district court found that all the elements of a claim had not been met, here the court held that all three elements were met, and so CBC’s use did support a right of publicity claim. The Court found that there was no consent and, differing from the district court, that the names were being used as a “symbol” of the player’s identities. Here the Court found that while the commercial advantage was not of the type to be included in a right of publicity claim, CBC still derived commercial advantage:

CBC’s use does not fit neatly into the more traditional categories of commercial advantage, namely, using individuals’ names for advertising and merchandising purposes in a way that states or intimates that the individuals are endorsing a product. . . .

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.

The Court’s court’s decision helps us all for recent precedent on the First Amendment preempting the type of right of publicity sought to be protected in this case. In doing so it cited to the Supreme Court’s decision 1977 decision in Zacchini v. Scripps-Howard:

The Supreme Court has directed that state law rights of publicity must be balanced against first amendment considerations, see Zacchini v. Scripps-Howard Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to the latter.

However, in the end, though, the Court talked so much about the “public value of information about the game of baseball and its players” because baseball is “the national pastime” that any value on the First Amendment issue may have been reduced to the facts of this case.

After affirming the contract dispute (there was a dissent on this issue) the 8th Cir. affirmed the district court’s decision. 

Note to students. This case was affirmed on, arguably, different grounds than the district court’s decision and was an appeal from a grant of summary judgment. This case was won and lost on the merits of the arguments contained in the brief’s.

Apologies to Judge Arnold, who wrote this opinion. I typically praise his writing. But knowing he is a baseball fan, I think the subject was too tempting to pass up, and so the precedential portion of the opinion is chock full of information that only serves to reduce its long term value. I will, however, look for you at the next Traveler’s game.

Additional Material:
USA Today story,
Bloomberg story
full text of C.B.C. Distrib. and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006), and
full text of C.B.C. Distrib. and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., Nos. 06-3357/3358 (8th Cir, Oct. 10, 2007).


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