Royalties on R.B.I.'s?
Published: May 20, 2006
Baseball statistics are an unlikely subject for a constitutional battle. But a lawsuit between Major League Baseball and a fantasy baseball company over batting averages and on-base percentages is shaping up to be just that. The narrow question is whether Major League Baseball has a right to keep the fantasy baseball company from using statistics from its games. But the suit has much broader implications for free speech. The courts should make it clear that anyone may use baseball statistics.
The company, CBC Distribution and Marketing, is a leader in fantasy baseball, a $1.5-billion-a-year industry that allows fans to become "owners" of imaginary baseball teams. Participants "draft" real-life major league players, and compete against similar teams. The teams' performance and the winners are determined by the statistics of actual major league players. Major League Baseball insists that it owns the statistics, and that CBC should pay licensing fees. CBC is suing to establish that it does not have to pay to use the statistics.
The case pits the "right of publicity" against the First Amendment. Major League Baseball claims that its right of publicity allows it to control and charge for the use of its statistics. But the right of publicity is narrowly limited to commercial exploitation. The classic case is the unauthorized use of a celebrity's photograph in an advertisement.
Major League Baseball's attempt to stretch the right of publicity is part of a larger trend. Corporations are becoming increasingly aggressive about locking up information. It is the same instinct that led Hollywood studios to push Congress to pass the Copyright Term Extension Act of 1998, which added 20 years to every copyright.
If Major League Baseball is allowed to control the use of its statistics, movie stars could demand compensation from magazines that profile them or put them on the covers. A hero who pulls a child from the path of an out-of-control car could claim that he owns the right of publicity for his act of heroism. But the First Amendment guarantees people the right to discuss public events. A movie star's career trajectory, an act of heroism and a batting average are all facts about the world and the people in it, and belong to all of us.