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Does Your Conscience Bother You?, Tell Me True.

Originally posted 2014-12-26 12:41:11. Republished by Blog Post Promoter

Alabama_Crimson_TideBack to our regularly scheduled overreaching. The rent grab continues apace. According to this article, “The University of Alabama has filed a federal trademark infringement lawsuit against noted painter Daniel Moore, claiming that his football paintings of the last 26 years were not licensed to show ‘Bama uniforms.”

This may be the stupidest one of the year so far. Hello, Fair Use? Can I introduce you to Messrs. Waiver and Acquiescence? Please, take a seat next to Miss Estoppel and her friends Mrs. Laches and Mr. Sol Limitations

Strike “‘Bama” off the “public Ivies” wannabe list.

In the Arena: A Sports Law Handbook

In the Arena - A Sports Law HandbookI contributed a chapter called “How Trademark Protection Intersects with the Athlete’s Right of Publicity” in a new book called In the Arena: A Sports Law Handbook.  Its publication, in true bar association fashion, was secretly announced last week.  Seeing, however, as how someone named “Packing Slip” sent me two copies in a plain-brown box, I guess I am allowed to tell you about it.  That association would be the New York State Bar Association,  whose Continuing Legal Education Publications published it so that you and I may continue our legal educations. You can buy the book here for cheap or you can send me $100 for an autographed copy; $125 if you want it to be my autograph.

The editors are the versatile, charming and, if I may say, rather handsome David Krell, and the phenomenal Elissa Hecker, whom I thank for extending to me the opportunity to contribute to the work. Here is a list of the other contributors.

Some excerpts from my chapter:

Athletes, their teams, and in some cases even their themes—think “Linsanity” or “Three-Peat”4—are brands. Those who generate such sports brands and wish to maximize their value must cultivate and protect them. Professional athletes engage marketers, publicists, accountants and strategists to protect the benefits of a lifetime of effort by anaging their brands. No brand-management lineup is complete without a lawyer who thoroughly understands how and what the law will and will not do to protect and optimize sports stars’ valuable personas.

Never before have intellectual property rights and what may be called their “emanations and penumbras” protected more economic activity than they do today. Chief among these “emanations” is the prohibitive cost to most defendants of litigating bona fide defenses to aggressive, and often meritless, claims of infringement. This situation trengthens the enforcement value of these legal claims, albeit in an arguably perverse way.

Read More…

Overreaching, Part XXVI — Major League Bozos?

Shoeless Joe Jackson

Say it ain’t so, Joe!

The Sports Law Blog reports on a story I first saw in the hard copy edition of IP Law and Business. A version of it (that magazine, like almost everything else, is owned by AmLaw Media) can be found here. Bottom line: Major League Baseball is asserting the “right” to the exploitation of baseball statistics, serving up such gopher balls as, “Player statistics are in the public domain. We’ve never disputed that. But if you’re going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they’re used for commercial gain.” The angle? Perhaps, maybe, the stats themselves don’t belong to the league, but, uh, the “methodology” for computing them does.

Utterly idiotic. Fabulously obnoxious. Rent your pinstripes, baseball owners! It’s not as if you have bigger problems to deal with.

Greg at the Sports Law Blog put it well:

Thus, it seems to me that baseball will lose this claim. Statistics are facts, nothing more, and can be disseminated as freely as can news stories. It is unclear how extending copyright to statistics would not also impact newspapers, television stations and commercial websites that also report baseball statistics. Baseball’s methods for “compiling” these statistics consists of the advanced mathematical functions of addition and averaging.

I’m not even sure it’s true that MLB itself (which has also had domain name issues of interest to legal professionals) has in any innovated or created the statistics. Most of these seem to have been created by fans (lots of fans) and media outlets.

All of which should make MLB happy. These baseball stats take on a life of their own and just route consumers right back to the product. Why it is that every single damned subsidiary thing that emits from a “property” has to be snagged, bagged and tagged is just, I guess, the waters of capitalism seeking their own level. In this case, however, here’s hoping the courts find that MLB is all wet.

UPDATE: David Marc Nieporent (of the famed Jumping to Conclusions blog, and) of our office reports as follows:

If you read the lawsuit for declaratory relief filed by CDC against MLB, attached as exhibits are the C&D letters sent by MLB. They make trademark and publicity claims, but no copyright. (Although the complaint for relief does ask for declaratory judgment on copyright, as well.)