Fantasy sports—games that allow fans to select their ideal roster from any team in the league and compete based on their players’ real-world performance—have become a big business. By one count, 27 million American adults participated in some form of fantasy sports in 2009. The industry’s rise has led to litigation over the right of athletes to stop companies from exploiting their images, biographical data, and statistics without permission. A majority of states recognize, by common law or statute or both, a “right of publicity” that provides a tort action against a defendant who appropriates the plaintiff’s name or likeness for economic advantage without consent. Those rights arguably collide with the First Amendment rights of game developers and consumers.
The leading case in this area is likely C.B.C. Distribution & Marketing Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), which held that a maker of fantasy baseball products available by phone, mail, e-mail, and the Internet was entitled to use Major League Baseball players’ names and statistics without a license. Finding that dissemination of factual information about America’s “national pastime” served a significant public interest, the U.S. Court of Appeals for the Eighth Circuit held that First Amendment protections outweighed the players’ right of publicity. And the usual economic justifications for the right of publicity—such as compensating individuals for their efforts, providing an incentive for further productive activity and protecting the public from deceptive advertising—were inapplicable because Major League Baseball players are well compensated and consumers would not perceive their inclusion in a fantasy baseball game as an endorsement.
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