Do you remember the lawsuit by Major League Baseball over the use of — well, not statistics, exactly, but the rights of publicity in baseball players and, marginally, the use of “players” (really, though, their statistics in a sense) by fantasy baseball leagues? That foul ball, unfortunately, has also not blown into the stands. Aaron Silverstein points to a New York Times article about the progress of this lawsuit as it heads into the bottom of the ninth. The issues are real ones, but the case will decide, in part, whether what was once regarded as common cultural of the American people — the personas of baseball players and what they do on the field — will be yet another “IP property” to be licensed, exploited and its rights “vigorously enforced,” to the (cultural) poverty of us all.
Ron Coleman pointed out that the case, weak as it is, would turn on the rights in the players’ personalities (see here). Nevertheless, the players’ names, not their personalities or images, are being used; the names are only incidental to the statistics which are in the public domain. For the same reasons that player names can be reported with their game-by-game statistics in the morning sports pages without payment of royalties, I think MLB’s case will fall short; the only question in my mind is whether their market and financial strength will enable them to extract a compromise from the smaller and more fragmented fantasy/rotisserie league proprietors.