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.) http://www.businessofbaseball.com/docs/CDC%20v%20MLBAM.pdf

Originally posted 2014-12-03 12:54:58. Republished by Blog Post Promoter

By Ron Coleman

I write this blog.

4 thoughts on “Overreaching, Part XXVI — Major League Bozos?”
  1. As I had mentioned sometime back (see http://infamyorpraise.blogspot.com/2005/03/get-grip.html), these comments were made by a corporate (mis?)communications veep for MLB after the in-house counsel for MLB Advanced Media declined comment on the issue. Hopefully, these are merely the poorly-informed comments of a non-lawyer, representing more wishful thinking of a marcomm type than the prospective legal position of MLB itself. Regardless, I think your take and that of the Sports Law Blog’s Greg Skidmore are correct — there’s no division of the public domain into non-commercial sections for the useless stuff and commercial sections for those items the former owners find some new use for after-the-fact. There are only very limited circumstances where a former owner can “claw-back” public domain items into protected status, and none of those circumstances (e.g., some interplay between domestic and foreign copyright treatments of some properties) seem applicable here. I had characterized this as an instance where a non-lawyer should take the hint when his lawyer declines comment and, more broadly, like those grade school pranks where the big kids try to sell the littler kids tickets to use the stairs in the building. Fortunately, at least in the month or so since I first heard these comments mentioned, we little kids don’t seem to be buying MLB’s guff.

  2. Colin, thanks for the comment. I am told by David Nieporent in my office that in fact this whole thing has been poorly reported — that the claim is really based on the right of publicity in the player personalities licensed to the league by the MLPA. When I get a link and better facts, I will update.

  3. Aha! Perhaps poor reporting may be the last refuge of the marcomm scoundrel! Hopefully, there is nothing more to this than a beef over player publicity rights. Still, such rights have generally been protected and licensed, as you mentioned, by the MLB Players Association, rather than by MLB itself or one of their corporate units. Moreover, the comments made by MLB’s rep, if correctly quoted, would seem either to belie the publicity rights position or at least to undercut it by conflating the generally-protectable (i.e., non-public domain) publicity rights with the unprotected statistics. Rotisserie baseball heavily relies on real-world statistics, but those statistics are not the exclusive basis of the games; I suspect that a significant portion of the cachet of these games would be lost if the names (and personalities) of the players could not be easily (or cheaply) associated with their statistics or if some other, artificial naming convention were used to enable trading and tracking within games. I look forward to reading whatever else you discover on this issue. Thanks.

  4. It is only suprising that it took MLB this long to complain. In the ninties, video games regularly included the likes of “Chigago Guard #23” as a star player, simply because the game co. refused to pay for the right to use Michael Jordan’s name. It seems that the publicity rights of the players are being infringed just as much by the unlicensed use in for-profit fantasy baseball, as they would be by unlicensed use in a video game. Fantasy sports are a huge industry and they do seem to be deriving much, if not all, of their profits from the use of player identities. I don’t see how fantasy sports could operate without the identities of players. The statistics linked to a uniform number or some other identifying mark would violate the players publicity rights just as much as their names, if those rights are found to exist in this context. It is an interesting problem, and I appreciate the updates. Thanks.

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