Free speech trumps IP in fantasy baseball

The IP wars have seen an ongoing series of court battles between major sports franchises such as the baseball folks in the US and others using e.g. the statistics from the games for other purposes, such as fantasy leagues. Major League Baseball Advanced Media has lost the latest skirmish in an appeal court decision favouring CBC Distribution.

"C.B.C. Distribution and Marketing, Inc., brought this action for a declaratory
judgment against Major League Baseball Advanced Media, L.P., to establish its right
to use, without license, the names of and information about major league baseball
players in connection with its fantasy baseball products. Advanced Media counterclaimed, maintaining that CBC's fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball...

The Supreme Court has directed that state law rights of publicity must be
balanced against first amendment considerations, see Zacchini v. Scripps-Howard
Broad., 433 U.S. 562 (1977), and here we conclude that the former must give way to
the latter. First, the information used in CBC's fantasy baseball games is all readily
available in the public domain, and it would be strange law that a person would not
have a first amendment right to use information that is available to everyone. It is true
that CBC's use of the information is meant to provide entertainment, but "[s]peech that
entertains, like speech that informs, is protected by the First Amendment because
'[t]he line between the informing and the entertaining is too elusive for the protection
of that basic right.' " Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95
F.3d 959, 969 (10th Cir. 1996) (quoting Winters v. New York, 333 U.S. 507, 510
(1948)); see also Zacchini, 433 U.S. at 578...

Courts have also recognized the public value of information about the game of
baseball and its players, referring to baseball as "the national pastime." Cardtoons,
95 F.3d at 972. A California court, in a case where Major League Baseball was itself
defending its use of players' names, likenesses, and information against the players'
asserted rights of publicity, observed, "Major league baseball is followed by millions
of people across this country on a daily basis ... The public has an enduring fascination
in the records set by former players and in memorable moments from previous games
... The records and statistics remain of interest to the public because they provide
context that allows fans to better appreciate (or deprecate) today's performances."
Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001). The Court
in Gionfriddo concluded that the "recitation and discussion of factual data concerning
the athletic performance of [players on Major League Baseball's website] command
a substantial public interest, and, therefore, is a form of expression due substantial
constitutional protection." Id. We find these views persuasive."

So free use of sports statistics in the public domain effectively trump the publicity rights of the sporting franchise and the players.