Publicity Rights and Major League Baseball Players

After purchasing a copy of the video game MVP Baseball 2005, a consumer might rush to start a game as the San Francisco Giants in order to play as Barry Bonds, the biggest superstar in baseball.  Unfortunately, however, the player will discover that Barry Bonds is not in the lineup, but a mythical player, Jon Dowd mans left-field and slugs homeruns for the Giants.  After the 2003 season, Barry Bonds became the first player in thirty years to not sign the group licensing agreement of the Major League Baseball Players Association (MLBPA) as he chose to pursue his own licensing opportunities.[1]  However, unlike video games produced by companies such as Electronic Arts Inc., Diamond Mind, Inc. has continued to include Barry Bonds in its past two season disks for its strategy oriented game Diamond Mind Baseball.[2]  While both video games contracted to receive their statistical data from the same source, Diamond Mind Baseball can continue to include Barry Bonds in its game simply because it does not attempt to include a likeness of him.  Aside from his name, no image is included (in fact, the game does not feature the single image, or even a silhouette, of a baseball player.  The legality of the use of Barry Bonds’ name has been shaped by numerous court cases, but the decision in NBA v. Motorola allowing STATS, Inc. to collect and commercial profit from factual information without the assistance the professional sports leagues provides the basis of this policy.

            In 1970, the case Uhlaender v. Henricksen was the first instance in which a player challenged the issue of the public domain of his name with the assistance of the MLBPA.  Ted Uhlaender, an outfielder for eight seasons[3], brought the suit on behalf of the members of the MLBPA against the defendant, the manufacturer of games titled “Negamco’s Major League Baseball” and “Big League Baseball Manager”.[4] In these games, the defendant used the names and statistics of nearly seven hundred baseball players without the consent of a single player.  The producers of the games argued that all of the names and statistics being used in the games were part of the public domain as the statistics could be acquired simply by reading newspapers or watching the news media, or asking the offices of Major League Baseball.  They further added that the game was not offensive or demeaning to the players in any way and that baseball players would benefit from the publicity generated by the game.  The players argued that their names have financial value and that they do not consent to the use of their names without receiving a payment.[5]

The court decided in favor of the MLBPA and ordered the defendants to cease production of the game until a licensing agreement with the players could be reached.  Such an agreement never occurred, and production of the game never resumed.  In its decision, the court held that:

A name is commercially valuable as an endorsement of a product or for use for financial gain only because the public recognizes it and attributes good will and feats of skill or accomplishments of one sort or another to that personality. To hold that such publicity destroys a right to sue for appropriation of a name or likeness would negate any and all causes of action, for only by disclosure and public acceptance does the name of a celebrity have any value at all to make its unauthorized use enjoinable.[6] 

In short, even if all of the information used in a game is public domain, an athlete, by being famous, has the right to protect his or her name from being used for profit without his or her consent.

            While the previous case established the “right to publicity” for an athlete, a subsequent ruling in Baltimore Orioles, Inc. v. Major League Baseball Players Association stated that teams, as employers of the players, own the copyright to the telecasts of baseball games under the “work made for hire” doctrine.[7]  The court elaborated that the players always have the opportunity to negotiate for the broadcast rights with the owners during each Collective Bargaining Agreement (CBA).  To the court, this suit appeared to be an attempt by the players to obtain additional rights to the ones they were able to procure in their negotiations with Major League Baseball.[8]  As employers, the “right to publicity” of an athlete cannot prevent the baseball teams from profiting on video of the players because their talent is the reason that they were hired in the first place.[9]  Thus, teams can continue to generate revenue by selling the broadcasts of their games without the sharing any of the money with the players.  The players, however, have the right to renegotiate this issue in a new CBA as one of the elements of the wages.[10]

            Around the time that the MLBPA was challenging whether the “right to publicity” for an athlete falls under the contract the player makes with his employer, the union was encouraging the players to transfer them the “right to publicity” away from Topps Chewing Gum, Inc. (“Topps”) regarding their images on baseball cards.  For more than twenty years, Topps had established a program of signing thousands of professional baseball players to individual contracts in order to procure the right to use the names, picture, signature and biographical information “to be sold either alone or in combination with chewing gum, candy and confection”.[11]  As the MLBPA began attempting to assert its authority as the collective licensing wing of the professional baseball players[12], it advised the players to stop negotiating extensions of their various individual contracts with Topps in order to receive more bargaining power. 

As these contracts began to expire, Topps filed suit charging that the MLBPA was instigating a group boycott in violation of Section 1 of the Sherman Act.[13]  In Supreme Court decisions regarding group boycotts, it has been decided that for such a condition to exist, businesses must exclude competitors or potential competitors from the market.[14]  In this case, Topps argued that it is a competitor for the “publicity rights” of the players with the MLBPA.  The court held that Topps is a consumer of these rights because it purchases them from the individual players.  The MLBPA, on the other hand, acts as a distributor of these rights for the players without charging a fee for its services.  Thus, while both Topps and the MLBPA are competing for the “publicity rights”, they are competing on different levels of the marketplace and the actions of the baseball players do not represent a group boycott in violation of the Sherman Act.[15]

Sports Team Analysis and Tracking Services, Inc. (STATS) provides sports information spanning many different leagues and sports including all four of the major professional sports leagues in the United States in an attempt to expand and enhance the knowledge of its clients.[16]  STATS accumulates its data regarding every event (pitch, shot, etc.) that occurs within a game by employing reporters across the country to cover the various sporting events.[17]  Because STATS expends its own resources to collect its data, the courts have ruled that the company is legally allowed to sell this data.  In short, the company bears all of the costs of accumulating its factual information without any assistance from the various professional sports leagues; therefore, the professional sports leagues cannot control how these facts are shared.[18]

In fact, the reporters employed by STATS are not even necessarily attending the games in which they are covering.  Instead, the reporters will occasionally collect their information from television and radio broadcasts.  Still, this information can be used because the factual information being distributed originates from the playing field.[19]  STATS then takes the information provided by these reporters and compiles the results in several databases and sells this data to a variety of clients including, among others, professional sports teams, print and broadcast media, and fantasy game operators.[20]  Diamond Mind, Inc. is one of the many clients of STATS as the game states, “The real-life statistics on this 2004 Season Disk are the copyrighted property of STATS, Inc.  Any commercial use or distribution without the express written consent of STATS is strictly prohibited.”[21]

            The landmark case regarding the ownership of statistics and results from sports games is National Basketball Association v. Motorola, Inc.  In this case, Motorola sold pagers providing live updates of scores using data provided by STATS.  In addition to Motorola, American On-Line was updating the scores of these games every fifteen seconds online through information also provided by STATS.[22]  At first, the NBA made a copyright infringement claim against the companies relaying the updates.  However, the court held that “NBA games do not constitute ‘original works of authorship’” so the games do not fall under the scope of copyright law.[23]  While live broadcasts of sporting events are protected by copyright law, the mere act of relaying the facts of the game such as score, inning, or time remaining is not protected.  As the court reasoned that STATS and Motorola “provide purely factual information which any patron of an NBA game could acquire from the arena without any involvement from the director, cameramen, or others who contribute to the originality of a broadcast”.[24]

Thus, Diamond Mind, Inc. is able to legally purchase the baseball statistics and facts for its Diamond Mind Baseball computer game from STATS, Inc. without negotiating a licensing fee from the MLBPA.  All of the statistics used in the game were compiled by STATS, Inc. without receiving any assistance from the MLBPA and is all entirely factual.  Still, most baseball video games negotiate a licensing fee from the union because they use more than just the data provided by STATS, Inc.  For example, in the game MVP Baseball 2005 manufactured by E.A. Sports, a wing of Electronic Arts Inc., a notice appears on the screen as the game starts stating that a licensing agreement was reached with the MLBPA.  At first, this might seem unusual since Electronic Arts Inc., like Diamond Mind, Inc., receives its statistical data from STATS, Inc.[25] 

However, one major difference exists in the format of the two games.  In Diamond Mind Baseball, the players are listed by name with their corresponding statistics and factual information (such as their ages)[26]; however, MVP Baseball 2005 not only uses the statistics for the players, but it also accompanies the statistics with pictures of many of them and images of players molded in their likenesses by height, skin color, and weight.[27]  By adding these likenesses of players, MVP Baseball 2005 crosses a threshold of “publicity rights” that requires a license from the MLBPA.  As the union states:

Through an individual agreement with each player, the MLBPA holds the exclusive, worldwide right to use, license and sublicense the names, numbers, nicknames, likenesses, signatures and other personal indicia (known as “publicity rights”) of active Major League Baseball players who are its members for use in connection with any product, brand, service or product line when more than two players are involved.[28]

Thus, by using the image of the players Electronic Arts, Inc. has created a situation in which it requires a licensing agreement from the MLBPA to sell its product.  This leads to the aforementioned problem for Electronic Arts, Inc. about its inability to include Barry Bonds in its game.  The term “likeness” is very loose and the video game manufacturer could attempt to create a player with similar characteristics to Barry Bonds as the leftfielder for the San Francisco Giants.  However, this action would run the risk of inciting a lawsuit for profiting on his likeness.  It would be very difficult for the company to decide how comparable its created player would be to the real player.  As it is, on the game, the player is Caucasian (unlike Barry Bonds) and was given a name (Jim Dowd) that has never belonged to a past player in order to avoid violating the publicity rights of someone else.  Still, a game that does not feature a likeness of the players, such as Diamond Mind Baseball, can continue to include Barry Bonds simply because all of the data including in their game are facts contracted from another company that accumulated it legally.