THE BOOK--Playing The Percentages In Baseball

http://www.bizofbaseball.com/index.php?option=com_content&task=view&id=1216&Itemid=42

I’m reading the Amicus briefs, and I was struck by this one statement, where the lawyers’ friendly brief TOWARD MLBPA/MLBAM says this (p 20):

“contains significant transformative elements”, such as “works of parody”, “news reporting”, “fictionalized-portrayals”, “heavy-handed lampooning”, and “subtle social criticism”—in which case it is protected by the First Amendment

Fantastic.  Wouldn’t taking real-life player names and their real-life player stats and using them in such a way as to create a fictional portrayal, like, say a Fantasy Baseball Game, qualify? 

It seems to me that the seemingly UNfriendly brief here paves the way to show that creating a game that contains significant transformative elements is protected by the First Amendment.

Even something like baseball-reference.com would be at risk, but not retrosheet.org.  While they would both qualify as news reporting, b-r.com exploits the sponsorship pages by making you pay for each individual player.

I would imagine a newspaper that sells ads based on whether the term “Barry Bonds” appears on a particular page would violate the right of publicity.

Heck, what about Google Ads that make you pay more for various search terms?  For example, a search for Paris Hilton:
http://www.google.com/search?sourceid=navclient&ie=UTF-8&rls=GFRB,GFRB:2006-44,GFRB:en&q="paris+hilton”

Leads to a few sponsored links, one of which is tapatap.com.  I would bet they paid alot more than the other websites.  Why is Google allowed to exploit Paris’s “good” name?

Google can’t claim that “Paris Hilton” just happens to be a random joining of words, since their search results comes back with relevant results.  So, they sell ad space specifically on the popularity of “her likeness”.

Google should be sending Amicus briefs too.

A search of
“significant transformative elements”
leads to some good articles, like this one about Tiger Woods’ likeness being used:
http://www.fwrv.com/news/article.cfm?id=100719

Also think of what is being “significantly transformed”.

We are talking about taking a game, in which the compilation of its individual recordings are immaterial to the outcome (win or loss), of which compilation of recordings happened to be made, recordings of which are part of the publich domain.  Players name are associated to those recordings.

And what are we doing?  We are creating a brand new game, one which has nothing to do with the actual game played.  We only adhere to the rules of the game--or in some cases creating brand new rules that have nothing to do with teh game of baseball itself, nothing about balls and strikes, bases and plate--but not the actual historically recorded game played.  We are not using their actual mannerisms or skills, but rather inferring outputs of the skills to create new outputs.

That’s a rather signficant transformation, no?

If not, on what basis do we not have significant transformation?

http://www.fwrv.com/news/article.cfm?id=100675

The inquiry into whether a work is “transformative” appears to the Court to be necessarily at the heart of any judicial attempt to reconcile the right of publicity with the First Amendment. When artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain, directly trespassing on the right of publicity without adding significant expression beyond that trespass, the state law interest in protecting the fruits of artistic labor outweighs the expressive interests of the imitative artist. On the other hand, when a work contains significant transformative elements, it is not only especially worthy of First Amendment protection, but also is less likely to interfere with the economic interest protected by the right of publicity.

Another way of stating the inquiry is whether the celebrity likeness is one of the raw materials from which an original work is synthesized, or whether the depiction or imitation of the celebrity is the very sum and substance of the work in question. The Court asks, in other words, whether the product containing a celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness. In this context, “expression” means expression of something other than the likeness of the celebrity.

The Court emphasizes that when the work is transformative, courts are not to be concerned with the quality of the artistic contribution - vulgar forms of expression fully qualify for First Amendment protection.

As a subsidiary inquiry, particularly in close cases, the Court may consider whether the marketability and economic value of the challenged, work derives primarily from the fame of the celebrity depicted. If not, there would generally be no actionable right of publicity. When the value of the work comes principally from some source other than the fame of the celebrity - from the creativity, skill and reputation of the artist - it may be presumed that sufficient transformative elements are present to warrant First Amendment protection.

In sum, when an artist is faced with a right of publicity challenge to his or her work, he or she may raise as an affirmative defense that the work is protected by the First Amendment inasmuch as it contains significant transformative elements or that the value of the work does not derive primarily from the celebrity’s fame.

Indeed, in Fantasy games, depending on the rules, and selection of stats, the value of certain players can be substantially different.  Albert Pujols can be a 45$ player in one game, and a 25$ player in another game.  Heck, in a Hacking M.A.S.S. kind of game, Pujols would be worthless.  So, I believe there is significant transformation in being able to apply the public domain compilations--that any book can print and sell-- into something brand new.  I don’t see how the “interactive” nature of the product makes the transformation any different.  In fact, it likely makes the transformation even more significant.

EA Sports on the other hand offers a simulation, and therefore, has little significant transformation.  If EA can include a diet, exercice, and drug regimen into their game, so that players actually physically change, then I think that would pass the rest too.

I think it should be a fairly clearcut case, an opinion which really means nothing, frankly.  Even if I were a lawyer.

http://www.ca8.uscourts.gov/oralargs/sessions.html

Click SELECT (Jun, 2007).
Look for 06-3357.

That’s the MP3 of the arguments of the case.  Looks like it’s about 30-45 minutes long.

I listened to the whole thing.  It runs an hour.

Based on my non-experience, this is what I gathered:
1. These judges don’t seem to ask good questions.  I think the two lawyers are better versed.  However, what will be telling is what the judges actually write.

2. No one, the judges, nor the two lawyers, talked about the balancing point between right of publicity and the first amendment: significant transformative elements.

The end-result is that the judges will declare this to be a first amendment issue.  However, they may find against CDC because they had signed a contract that is not pre-emptable.  That’s really the only sticking point.

http://www.baseballthinkfactory.org/files/newsstand/discussion/the_biz_of_baseball_brown_oral_arguments_in_fantasy_stats_appeal_tomorrow/P100/

Post 181 from Chris Dial.

If Chris argued his point in front of these three judges, they’d buy it (based on what I heard from the judges mouths).  How Chris is thinking it, and that’s how I’m thinking it.  The name is simply an “id” in database talk.  It’s simply a way to identify the stats to various news reports related to those stats. 

As Chris noted, but the other lawyers did not, you could have fantasy baseball on already determined stats.  The judges were only thinking in terms of yet-to-be-produced stats.  But, as Chris very well points out, you can replay the 1907 season, have no idea who anyone is, and you’d love it.  Why?  It has nothing to do with the names of the players.  It has nothing to do with the stats.

It has everything to do with:
1. the game of baseball
2. being a part, somehow, of MLB

The names of the players is really incidental.  If you were to construct a mapping system that would have the following:
1. My team shows “St. Louis 5” (the 5 being Pujols jersey number).
2. The world know about “Albert Pujols”
3. I have a mapping table that links “St. Louis 5” to “Albert Pujols”
4. I have a news service where you put in a search term of “St. Louis 5”, it comes back with information related to “Albert Pujols”, but blacks out his name (indeed, changes it to St. Louis 5), we’d be happy.

***

MLBAM lawyer said she’d have a problem if Vegas took bets on individual players.  I’d suspect that they actually do.  At the least, you need to know the starting pitcher to place your bet (you want to know if Johan Santana is on the mound or not).  In any case, I have to believe that they take bets like “how many passes will Tom Brady make in a row”, etc.  Of course, maybe Vegas has different Rights of Publicity.

Fantasy 2, MLB 0:

http://www.ca8.uscourts.gov/opndir/07/10/063357P.pdf

The Court in Gionfriddo concluded that the “recitation and discussion of factual data concerning the athletic performance of [players on Major League Baseball’s website] command a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.” Id. We find these views persuasive.
... we hold that CBC’s first amendment rights in offering its fantasy baseball products supersede the players’ rights of publicity.

The Players Association maintains that the no-challenge and no-use provisions of the 2002 agreement are fatal to CBC’s claim. We disagree.

Section 8(a) of the agreement provides that the Players Association “is the sole and exclusive holder of all right, title and interest” in and to the names and playing statistics of virtually all major league baseball players. This is quite obviously a representation or warranty that the Players Association did in fact own the state law publicity rights at issue here. For the reasons given above, the Players Association did not have exclusive “right, title and interest” in the use of such information, and it therefore breached a material obligation that it undertook in the contract. CBC is thus relieved of the obligations that it undertook, and the Players Association cannot enforce the contract’s no-use and no-challenge provisions against CBC.

Interview with CBC lawyer:
http://www.bizofbaseball.com/index.php?option=com_content&task=view&id=1665&Itemid=81