Rocking Wrigley: the Chicago Cubs' off-field struggle to compete for ticket sales with its rooftop neighbors.

• Author: Bitman, Ronnie

1. INTRODUCTION 378 II. FCC AND JUDICIAL RECOGNITION 381 A. FCC Leniency 381 B. Judicial Favoritism of Sports Property Protection 381 C. Fortification of Sports Property Rights Through Enactment of the Copyright Act 383 III. THE CHICAGO CUBS' COMPLAINT 384 A. Have the Rooftop Owners Been Unjustly Enriched? 384 B. Balancing Sports Property and Land Use Rights 385 C. Copyright in Relation to Sports Property 385 IV. UNJUST ENRICHMENT 386 A. Restatement Position 386 B. Sole Element of Proximity 387 V. LAND USE RIGHTS 388 A. Deppert v. Detroit Base-Ball Club 388 B. Right to Observe and Record Events on Adjoining Land 389 VI. COPYRIGHT INFRINGEMENT CLAIMS 390 A. Fundamentals of the Copyright Act 390 B. NBA v. Motorola 391 C. Copyright in One Event Afforded to Several Entities 393 VII. CONCLUSION 395 I. INTRODUCTION

   For the entire history of Wrigley Field, landlords of these buildings, their tenants and guests have enjoyed watching major league baseball games from these unique vantage points .... It would ... be absurd to claim that persons lawfully on the property of the buildings near Wrigley Field must avert their eyes in order to avoid "misappropriating" these games. (1) In 2000, the Chicago National League Ball Club ("Cubs" or "Club"), owned by the Tribune Company, (2) sought to enlarge its playing facility, Wrigley Field). (3) The proposal called for an estimated expansion of approximately 2,000 seats to a ballpark that currently accommodates 39,059 people. (4) The residents of Wrigleyville, the area surrounding Wrigley Field, have vehemently rejected such plans to augment the ballpark's seating capacity, stating that such additions would ultimately increase "parking problems, traffic, litter, noise, crime, public urination, and other nuisances" in the vicinity. (5)

   In attempting to expand the ballpark, the Tribune Company began planning and bargaining with Wrigley Field's neighbors. However, the team owners were unable to negotiate any deal. (6) During these discussions, several rooftop businesses overlooking Wrigley Field backed the neighbors' cause. (7) The rooftop operators, who have created profitable enterprises by selling tickets to fans (wishing to view games at Wrigley from their rooftops), (8) worried that their extraordinary views of the team's playing field would be obstructed by the proposed venue expansion. (9)

   The Cubs frustration with this unraveling situation reached its zenith on December 16, 2002, when the Club filed a lawsuit against the owners of several of these rooftop businesses. (10) The Cubs argue that the rooftop operators violate copyright laws and "directly compete" with the team for ticket sales. (11) Moreover, the Cubs aver that the rooftop business owners have been "piggybacking" on team marketing in direct violation of the Lanham Act, have misappropriated the team's property, and have been unjustly enriched. (12)

   The outcome of this case will seriously affect several areas of the law. The suit raises federal questions concerning the Copyright and Lanham Acts. It also raises state questions concerning contracts, land use controls, and misappropriation. While resolving these claims is important, this Note focuses on several other questions that directly impact communications law. For example, it is yet to be resolved whether the Cubs are suggesting that the rooftop owners are infringing the Cubs' copyright by publicly displaying telecasts of the team's games, or if they are alleging that the rooftop owners (and their ticket-buying customers) are precluded from even watching the Cubs' games from these nearby locations. If the court determines that the rooftop owners are conducting legitimate business practices, there remains the possibility that the owners will contract with broadcasting entities and enter into lucrative telecasting deals (e.g., providing broadcasters with magnificent rooftop views of Wrigley Field in exchange for handsome monetary returns).

   Even though the outcome of this case is uncertain, several important questions have emerged. If sports events cannot be copyrighted, can a sports team or other entity that publicly performs these events require that nonpaying passers-by or fans of the performance direct their attention elsewhere in order to avoid copyright infringement or unjust enrichment? Further, can broadcast networks, filming from neighboring rooftops, televise the performance without paying royalties or licensing fees to those creating the event? To answer these questions, significant issues relating to ownership of information and broadcasting rights must be addressed.

   Although this case raises considerable Lanham Act and misappropriation claims, this Note focuses on the copyright and unjust enrichment claims involved in the Chicago Cubs case. Additionally, because of the potentially immense precedential value of this case, this Note is broadly tailored to illustrate the far-reaching effects that this case may have on other sports entities and entertainment venues hosting public performances. Clearly, this case raises several vital questions, and--assuming that it goes to trial and that a judgment is rendered--its result could significantly impact the sports and entertainment world, the legal community, and the current landscape of communications law. (13)

   Part II of this Note focuses on the creation of a property right in sports information while specifically addressing the actions of the Federal Communications Commission ("FCC") and the judiciary in enabling such a right. Further, mention is made of the significance of the Copyright Act in establishing this property right in sports information. The remainder of this Note discusses specific arguments relating to unjust enrichment (Part IlI), the balance of sports property rights and land use rights (Part IV), and the availability of copyright infringement claims for sporting or other entertainment events (Part V).

2. FCC AND JUDICIAL RECOGNITION OF SPORTS INFORMATION

   1. FCC Leniency

      The situation in which the Cubs and the rooftop owners find themselves is nothing new. As early as the 1920s, Major League Baseball ("MLB") entered into broadcasting contracts authorizing radio stations to air World Series games. (14) In 1934, A.E. Newton, who operated his own radio station in his basement, wanted to broadcast the World Series without having to pay broadcasting royalties to any of the interested sports organizations. (15) Newton gave his listeners "running accounts" of the 1934 World Series games. He listened to authorized radio broadcasts and simply relayed his version of the games' play-by-play action. (16)

      Because of these actions, Newton faced opposition when he attempted to renew his broadcasting license. (17) The FCC originally thought that Newton's actions violated the Communications Act of 1934. (18) However, after investigating Newton, the FCC determined that, although it did not particularly agree with his actions, (19) Newton had not violated the Communications Act. (20) The FCC emphasized that since Newton had confined his sports broadcasting career to the 1934 World Series, his license would be renewed. (21)

   2. Judicial Favoritism of Sports Property Protection

      Newton's travails with the FCC initiated debate concerning ownership of information and the property rights associated with sporting events. Sports broadcasting issues were routinely brought to the FCC's attention; however, the state and federal courts, not the FCC, were ultimately thrust into the middle of these controversies. (22) Owners of sports organizations thought that judicial forums were much more favorable than the FCC had been, and thus pursued judicial review of these types of cases. (23) Amateur broadcasters "who sought to follow in Newton's footsteps" proclaimed that the "running accounts" of the sporting events were merely "news in the public domain" and argued that any person had the right to disseminate such news. (24) However, the sports organization owners and the courts took a different view. (25)

      In Pittsburgh Athletic Co. v. KQV Broadcasting Co., a radio station broadcast Pittsburgh Pirates' baseball games without the permission of the Pirates organization, (26) which had already licensed its radio rights to NBC. (27) The Pirates sued to enjoin the unauthorized KQV broadcasts. They sought a preliminary injunction, which the court eventually granted. In enjoining KQV Broadcasting from covering the Pirates' games, the court held that the Pirates organization, "by reason of its creation of the game, its control of the park, and its restriction of the dissemination of news therefrom [sic], had a property right in such news, and the right to control the use thereof for a reasonable time following the games." (28) The court further held that KQV had

      misappropriated the property rights of the Pirates in the "news, reports, descriptions or accounts" of the Pirates' games; that such misappropriation resulted in KQV's "unjust enrichment" to the detriment of the Pirates; and that KQV's actions constituted "unfair competition," a "fraud on the public" and a violation of unspecified provisions of the Communications Act. (29) This case clearly helped to establish the right in sports information property.

   3. Fortification of Sports Property Rights Through Enactment of the Copyright Act

      In Zacchini v. Scripps-Howard Broadcasting Co., (30) the Supreme Court recognized exclusive property rights to the "Human Cannonball." (31) The Court held that an Ohio television station, which had secretly taped his performance and subsequently broadcast it during a newscast, had misappropriated his property right. (32) Zacchini established that sports organizers have a property right in the accounts and descriptions of their events. (33) However, the holdings of Pittsburgh Athletic Co. and Zacchini, were "based on a claim of misappropriation of property rights, a claim granted under state common law, which is preempted to the extent that...