Play ball if that's your fantasy

Here's a link I created to the lengthy opinion in C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P. , 2006 WL 2263993 (E.D. Mo. Aug. 8, 2006), by Magistrate Judge Mary Ann L. Medler. The dispute, over the use of players' names and scores and fantasy leagues has been widely covered. The court's analysis is in two basic parts: (1) right of publicity, including a First Amendment exception; (2) preemption under the Copyright Act. There is also a discussion of a license issue.

The Court found that the C.B.C. was not using the players' names and playing records in a way to create an impression of association or sponsorship, or commercial advantage, or as a symbol of the players' identity, and that the First Amendment trumped any interest players might have.

On preemption, the Court faltered badly, assuming arguendo that the names and playing records were within the scope of copyright. This was not the right question, and it then led the court to its second error in finding that because they weren't original, there was no preemption. The Second Circuit's Motorola case (105 F.3d 841) got this analysis right.

In short, an interesting opinion, right result, reasoning shaky.