Fantasy Baseball 2, Real Baseball Zero

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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.

The Tony Twist case -- Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) -- pitted former St. Louis Blues hockey player Tony Twist against comic book artist Todd McFarlane.  Twist alleged that a fictional mob boss in McFarlane's Spawn comic, Antonio "Tony Twist" Twistelli,  violated his right of publicity in his name and identity.  Because the jury found that Twist had proved all three elements of his claim, the issue for the Missouri Supreme Court was whether the First Amendment protected McFarlane's artistic expression in selecting the name of a hockey tough guy as the name of his fictional gangster tough guy.  The Missouri Supreme Court rejected the two prevailing legal tests on the issue -- both of which it conceded would have protected McFarlane -- and instead crafted a third test.  This new test -- the "predominant purpose" test -- asks a court to weigh the artistic purpose of the use of the celebrity's identity against its commercial purpose.  If the commercial purpose predominates, there is no First Amendment protection.

It is a legal test that Geoff, Pete and I are all too familiar with, having fought it in the Missouri courts on behalf of Todd McFarlane and having unsuccessfully petitioned the U.S. Supreme Court for a writ of certiorari.  That cert petition generated my favorite amicus brief of all time, filed by UCLA Law Professor Eugene Volokh, creator of the great Volokh Conspiracy blog, on behalf of Michael Crichton, Larry David, Elmore Leonard, Scott Turow and other impressive names.  Read his masterful explanation of how the "predominant purpose" test runs counter to the realities of artistic creation.

So what did the Eighth Circuit do with the "predominant purpose" test? Totally ignored it.  Although the Eighth Circuit cites various state and federal precedents in its discussion of why the First Amendment protects the fantasy baseball use of the names and identities of the real players, it makes no mention of the First Amendment test created by the same Missouri decision that it relies upon for the elements of the tort.  Interesting.

For other thoughts on the case, check out this interesting post by Cathy Kirkham at her Silicon Valley Media Law Blog.

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