Owners, Borrowers & Thieves 2.0 : Owners, Borrowers & Thieves 2.0 : Husch Blackwell Sanders LLP : First Amendment, Commercial Speech

William Patry, the Mack Daddy of Copyright, has a fascinating post entitled, "The Effect of Judicial Ideology in IP Cases," on his eponymous blog.  (Ah, I finally found a way to use "eponymous.")

Patry discusses an empirical study by Professors Matthew Sag, Tonja Jacobi and Maxim Stych, posted here on the Social Science Research Network, in which the authors present the results of their examination of the past 22 years of Supreme Court decisions in the fields of patents, copyrights and trademarks.  According to the abstract of their article, their analysis shows "that ideology is a significant determinant of cases involving intellectual property rights."  Even more interesting, ideology seemed to dictate different results depending upon the type of intellectual property involved, e.g., the Justices were more likely to vote against a trademark owner but for a copyright owner.

On a less scholarly basis I have noticed similar -- and similarly unexpected -- ideological divides in lower courts in the field of right of publicity.  Given that the right of publicity is a property right, judges from which end of the political spectrum are more likely to protect it?  Wrong.

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The Eighth Circuit handed down its much awaited fantasy baseball decision in CBC Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., the appeal of the district court's summary judgment in favor of CBC.  CBC had brought a declaratory judgment case in St. Louis to establish its right to use -- without license or compensation -- the names and statistical information of real major league baseball players in its fantasy baseball products.  The players had counterclaimed, maintaining that CBC's fantasy baseball products violated their rights of publicity.

Although the Eighth Circuit concluded that use by CBC of the names and statistics of the players in its commercial fantasy baseball operations satisfied all three elements of the Missouri tort -- namely, (1) use of the player's name as a symbol of his identify, (2) without his consent, and (3) with the intent to obtain a commercial advantage -- it held that this use was nevertheless a "fair use" under the First Amendment.

But of more interest to me -- and to those concerned that right-of-publicity has become the tort of choice for celebrities seeking to avoid the First Amendment barriers to libel and privacy claims -- is the Eighth Circuit's treatment of the controversial  First Amendment test created by the Missouri Supreme Court in the Tony Twist case, which is also the same case that articulated the three elements of the tort claim set forth in the preceding paragraph.

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It used to be pretty simple.  You went to a record store (or mailed in your record-club form), bought an album or CD, and you owned it.  As the owner, you had certain rights--under the First Sale and Fair Use doctrines, you could make a copy for your own personal use, give it away,  share it, even sell it.  Easy, right?

Well, the times they are a'changin'.  Like many people, I haven't bought a new CD in a long time -- I have all my music on my iPod and download it from iTunes (legally, of course).  Now I'm excited about Amazon.com's new MP3 Store, which promises cheaper music downloads, better sound, and--most importantly--the music is DRM-free, meaning I can play it on any device.  Great! 

But not so fast . . .

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