Fantasy liability: publicity law, the First Amendment, and fantasy sports.

• Author: Bhatnagar, Manav K.

Online fantasy sports (1) services have proliferated over the last decade. The success of fantasy sports, particularly for professional football and baseball, has encouraged the industry to expand to nearly a dozen sports ranging from soccer and golf to bowling and fishing. Surveys now estimate that approximately twenty-seven million adult Americans (2) participate in the already multi-billion dollar industry. (3) Given the financial stakes, the growth of the industry has predictably given rise to disputes between fantasy leagues, seeking to enter the growing market, and professional leagues and players' unions, seeking to license the use of player publicity. One growing area of legal conflict is rooted in the conflict between the publicity rights of players and the First Amendment rights of fantasy sites.

The conflict between publicity rights, and state tort law more generally, and the First Amendment has been litigated across a wide range of industries, but its application to fantasy sports is recenc (4) C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., decided in the Eighth Circuit, remains the only federal appeals court case to raise the issue of whether the First Amendment's protection of the use of player names and statistics trumps players' publicity rights. (5) In response to a players' union's efforts to prohibit C.B.C.'s further operation, C.B.C. brought suit to protect its right to the unlicensed use of player information. (6) The Eighth Circuit applied a balancing test, ruling that while there was a publicity rights violation, the First Amendment interests still "supersede[all the players' rights of publicity." (7)

This Comment argues that while fantasy leagues may have won the most recent battle in the legal war over the use of player names and statistics by online fantasy sports leagues, the victory is not on solid footing. (8) The approach adopted in the Eighth Circuit, while nominally protective of the First Amendment right of fantasy leagues to use statistics already in the public domain, falls short of offering the strong protection that is both doctrinally correct and pragmatically desirable. This Comment criticizes the balancing test approach for too easily ceding that the use of player names and statistics constitute a violation of publicity rights (9): prohibiting the unlicensed use of names and player statistics neither falls within the doctrinal scope of publicity law nor furthers the policy rationale for publicity rights.

I: THE DOCTRINAL SCOPE OF PUBLICITY LAW

Publicity rights violations generally have two elements: first, there must be use of a protected individual's identity; and second, the identity must be appropriated to further an impermissible purpose--for example, to seek a commercial advantage. The C.B.C. court focused its analysis of publicity law on the second prong of the violation, virtually ceding the debate over whether use of player names and statistics satisfy the first prong. (10) The first Section steps back to assess whether the use of player names by fantasy leagues constitutes a use of "identity" for the purposes of a publicity rights violation.

1. The "Identity" Requirement of a Publicity Rights Violation

   Fantasy sports leagues do not use any aspect of a player's personal identity beyond the name, (11) which is insufficient to constitute the use of "identity." Courts have consistently held that publicity law protects the identity or persona of a player--as expressed through images, likeness, personality, or other symbolic means--and not against "mere use of a name." (12) More succinctly, "how players' names are used is [more important] than the mere fact that they are used." (13) Thus, to meet the identity requirement, the infracting party must use expressions of personality or persona that are greater than, or at least distinct from, an individual's name. (14)

   Courts have turned to the Restatement of Unfair Competition for guidance in determining which uses of a public personality's name are permissible. The Restatement counsels courts to consider "the nature and extent of the identifying characteristics used by the defendant, the defendant's intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience." (15) The Restatement factors were applied in Doe v. TCI Cablevision to determine that the comic book character Tony Twist was an impermissible appropriation of the identity of Tony Twist, a professional athlete. (16) The court based its finding on similarities in personality, use of identifying physical characteristics, and the defendant's intent to capitalize on the athlete's fame. (17)

   When applied to fantasy sports, the Restatement and TCI factors counsel against finding a violation. The use of names and statistics by fantasy leagues does not invoke the personalities, reputation, or other behavioral attributes of players; does not reference the physical characteristics, image, or likeness of the players; and is not motivated by the intent to capitalize on player fame since fantasy leagues include the statistics of all players irrespective of popularity and success. The only information used by fantasy leagues is the player's name, which courts have not held to be a violation on its own, and statistics, which are neither recognized by any court as an element of identity nor related to...