07-123
IN NO. THE
Supreme Court of the United States
__________
VIRTUAL FOOTBALL OWNERS, INC., Petitioner, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Respondent. __________ On Writ of Certiorari from the United States Court of Appeals for the Fourteenth Circuit __________
BRIEF FOR THE PETITIONER
TEAM F Attorneys for the Petitioner
QUESTIONS PRESENTED
I.
WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT VIRTUAL FOOTBALL OWNER, INC.s INTERNET FANTASY FOOTBALL GAMES VIOLATED THE PLAYERS RIGHT OF PUBLICITY UNDER THE STATE LAW OF TULANIA. WHETHER THE COURT OF APPEALS ERRED IN HOLDING THAT VIRTUAL FOOTBALL OWNER, INC.s INTERNET FANTASY FOOTBALL GAMES ARE NOT PROTECTED BY THE FIRST AMENDMENT.
II.
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TABLE OF CONTENTS QUESTIONS PRESENTED............................................................................................... ii TABLE OF CONTENTS ................................................................................................... iii TABLE OF AUTHORITIES ............................................................................................. vi OPINIONS BELOW ........................................................................................................ viii JURISDICTIONAL STATEMENT ................................................................................ viii RELEVANT LAW .......................................................................................................... viii STATEMENT OF THE CASE............................................................................................x SUMMARY OF THE ARGUMENT ............................................................................... xii ARGUMENT .......................................................................................................................1 I. THE COURT OF APPEALS ERRED IN HOLDING THAT VFO VIOLATED NFLPAs RIGHT OF PUBLICITY BOTH AS A MATTER OF LAW AND IN VIOLATION OF POLICY CONSIDERATION .....................1 A. This Court Should Apply the Restatement Test in a Narrow Fashion to Give Meaning to the Right of Publicity. ....................................1 1. 2. 3. This Court should not construe VFOs use as an appropriation of the NFLPAs identity. ...................................2 VFOs use was not for purposes of trade within the meaning of 47..........................................................................3 Should the Court find that VFO did appropriate NFLPAs identity for purposes of trade, an exception should apply to negate liability. .......................................................4
B.
The Court of Appeals Reversal is Inconsistent with the Policies That Support the Right of Publicity. ............................................................5 1. 2. VFO was not unjustly enriched by stealing NFLPAs good will. .........................................................................................5 NFL players will still have an economic incentive to invest in achievement because of lucrative opportunities iii
besides collecting VFOs royalties. .................................................5 C. The Court of Appeals Below Reversed the District Court Based on Two ReasonsBoth of Which are Untenable. ............................6 1. The district court did not require inclusion of a photograph or likeness, nor does such a requirement have a basis in publicity precedent. ......................................................................7 The district court did not expressly require a finding of implied endorsement as a prerequisite to a publicity violation, but such a requirement is rooted both in policy and precedent. ...........................................................8
2.
II.
VFOS FIRST AMENDMENT RIGHT TO USE THE PROFESSIONAL FOOTBALL PLAYERS NAMES, STATISTICS, AND CHARACTER TRAITS IN ITS FANTASY GAMING WEBSITE SHOULD BE VINDICATED................................................................................10 A. VFOs First Amendment Interest in its Use of the Players Information Outweighs the NFLPAs Publicity Interest in the Same Information.............................................................................11 1. VFOs use of the player information constitutes pure speech and, as such, should be afforded full First Amendment protection. .........................................................11 a. b. The player information is speech within the ambit of the First Amendment. ....................................................12 VFOs use of the player information is pure speech and therefore should be afforded full first amendment protection. .......................................................12
2.
The players publicity interest is not implicated on these facts. ...14 a. Professional football players do not receive an appreciable economic incentive to play in the National Football League from an ability to control the dissemination of their professional information. .........15 VFO is not unjustly enriched by using the player information. ............................................................16
b. 3.
VFOs first amendment interest in offering its fantasy football products is therefore weightier than the players publicity interest. ........................................................17 iv
B.
By Vindicating VFOs First Amendment Right to Expression, the Court May Also Fashion a Coherent Line Between First Amendment Protections and Publicity Rights. ......................................................18 1. Properly viewed, the right of publicity should be limited to right to performance cases and false endorsement cases. ...................................................................................18 Other tests fail to draw a proper line between the First Amendment and the right of publicity. .....................................................20 Publicity law can be coherent. ...................................................................22
2. 3.
CONCLUSION ..................................................................................................................24
v
TABLE OF AUTHORITIES CASES: Cohen v. Cowles Media Co., 501 U.S. 663 (U.S. 1991). ...................................................13 Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Commn. of N.Y., 447 U.S. 557 (1980). ....................................................................................11,13,19 San Francisco Arts and Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522 (U.S. 1987). ......................................................................................23 Time, Inc. v. Hill, 385 U.S. 374 (1967). .............................................................................12 Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). ................................ passim Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996). .............................4,8,16 Cardtoons, L.C. v. Major League Baseball Players Assn, 95 F.3d 959 (10th Cir. 1996). ........................................................................ passim C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., Nos. 06-3357, 06-3358, 2007 WL 2990366 (8th Cir. Oct. 16, 2007). ................................................................................. passim Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir. 1953). ............8,9 Interactive Digital Software Assn v. St. Louis County, Mo., 329 F.3d 954 (8th Cir. 2003). ............................................................................................12 White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992). ..........................8,16,19 C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006). .....................................1,2,7,9 Ali v. Playgirl, Inc., 447 F.Supp. 723 (S.D.N.Y. 1978). ......................................................8 Uhlaender v. Hendricksen, 316 F. Supp. 1277 (D. Minn. 1970). .....................................8,9 Doe v. TCI Cablevision, 110 S.W.3d (Mo. 2003)...................................................... passim Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001). .................................................................................................. passim Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639 (Cal. 1995) ......................4 vi
Palmer v. Schonhorn Enters., Inc., 232 A.2d 458 (N.J. Super. 1967). ..........................................................................................3,4,8,9 Winter v. D.C. Comics, 69 P.3d 473 (Cal. 2003). ...............................................12,21,22,23
OTHER SOURCES: RESTATEMENT (THIRD) OF UNFAIR COMPETITION (2005) 46....................................1,2,3,7 RESTATEMENT (THIRD) OF UNFAIR COMPETITION (2005) 47..........................................3,4 Sheldon W. Halpen, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 VAND. L. REV. 1199 (1986). .........................5
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OPINIONS BELOW Natl Football Players Assn v. Virtual Football Owner, Inc., No. 05-CV-0429 (D. Tul. Filed May 20, 2005); See (R. at 3). Natl Football Players Assn v. Virtual Football Owner, Inc., No. 07-020580 (14th Cir. 2006); See (R. at 10).
JURISDICTIONAL STATEMENT The National Football Players Association is incorporated under the laws of the state of Delaware. Virtual Football Owner, Inc. is incorporated under the laws of the state of Tulania. NFLPAs suit was properly filed in the federal district court in the district of Tulania on the basis of diversity. 28 U.S.C. 1332 (2005). This Court, in its discretion, conferred jurisdiction upon the parties pursuant to 28 U.S.C. 1254 (2005) when it granted VFOs Petition for a Writ of Certiorari. RELEVANT LAW U.S. CONST. AMEND. I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
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RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46: Appropriation Of The Commercial Value Of A Person's Identity: The Right Of Publicity. One who appropriates the commercial value of a person's identity by using without consent the person's name, likeness, or other indicia of identity for purposes of trade is subject to liability for the relief appropriate under the rules stated in 48 and 49.
RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47: Use For Purposes Of Trade. The name, likeness, and other indicia of a person's identity are used "for purposes of trade" under the rule stated in 46 if they are used in advertising the user's goods or services, or are placed on merchandise marketed by the user, or are used in connection with services rendered by the user. However, use "for purposes of trade" does not ordinarily include the use of a person's identity in news reporting, commentary, entertainment, works of fiction or nonfiction, or in advertising that is incidental to such uses.
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STATEMENT OF THE CASE Virtual Football Owner, Inc. (VFO) operates a website that provides family and friends an opportunity to play fantasy sports games. (R. at 10). For years, VFO contracted with the National Football Players Association (NFLPA) through a license agreement. (R. at 12). The agreement permitted VFO to use the names, nicknames, likenesses, pictures, playing records, on-field personality traits, and/or biographical data of each player, or Players Rights. (R. at 12). The agreement expired, however, in 2005. (R. at 12). Attempts to renegotiate the contract were unsuccessful. (R. at 12). Nevertheless, VFO continued to offer VFO the fantasy game entitled Real Football Owner. (R. at 12). Real Football Owner (RFO) was VFOs most popular fantasy game. (R. at 11). RFO lists professional football players names for selection by the games participants. (R. at 11). Before each National Football League (NFL) season, RFOs participants select players from the list. (R. at 11). In this respect, RFO provides its participants a unique gaming experience. (R. at 11). Each participant is able to assume the role of a professional football team owner by drafting players from various professional football teams. (R. at 11). The game participants compete against one another based on the success of the team he or she has drafted. (R. at 11). Team success is determined by the individual performances of the teams players in actual NFL games. (R. at 11). RFO distinguishes itself from other online fantasy football games by offering a unique player profile system. See (R. at 11). The player profile system allows RFOs participants scouting reports about players individual characteristics and tendencies. (R. at 11). The scouting reports are based on actual statistical data and news reports. (R. at 11). All the data is available to the general public. (R. at 11). The reports were candid. (R. at 11). Some reports criticized player x
performances. (R. at 11). For example, the Chicago Bears quarterbacks player profile is entitled Scared to Throw. (R. at 11). Other reports, however, were more flattering. (R. at 11). For example, the Colts star quarterbacks player profile is entitled Always Learning. (R. at 11). No matter the substance of the written player profiles, each is grounded in the players statistics. See (R. at 11). Due to VFOs continued use of the players names, statistics and personal characteristics subsequent to the expiration of the licensing agreement, the NFLPA sued VFO for an injunction to prevent the use of Players Rights and damages. (R. at 2). In response, VFO file for summary judgment. (R. at 3). The United States District Court for the District of Tulania granted VFOs summary judgment motion. (R. at 3). NFLPA appealed. The Court of Appeals for the Fourteenth Circuit reversed, finding VFOs use of the players names, statistics, and individual characteristics violated the players right of publicity and that the player information was not protected by the First Amendment. (R. at 15, 17). VFO appealed, and this Court granted certiorari. See (R. at 18).
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SUMMARY OF THE ARGUMENT This Court should reinstate summary judgment for VFO because VFOs use of the professional football players names, statistics, and character traits (player information) did not violate Tulianas common law right of publicity. VFO concedes that it used player information, but refuses that it used the information for the purposes of trade or appropriated the players identities as required by the statute to success in a right of publicity claim. Moreover, in applying the elements of the test so broadly, the Court of Appeals test becomes not test at all and sculpts a right that is inconsistent with its rationale. Assuming, arguendo, that NFLPA can nevertheless prove all the elements required to make out a prima facia case for publicity infringement, the Court should still find for VFO. The common law provides newsworthy or entertaining uses of publicity preempts liability infringement. VFOs use satisfies both common law exceptions. The Court of Appeals reversal is made more dubious by the fact that both its grounds for reversal are untenable. As a result, VFO should not be liable for infringement. Moreover, even if VFO did violate Tulianas common law right of publicity, the First Amendment protects VFO use of the challenged material. VFOs use of the player information is first amendment speech entitled to full protection. In contrast, NFLPAs publicity interest in the same material is weak. The facts of this case fail to implicate either rationale for the right of publicity. Accordingly, VFOs first amendment interest is weightier than NFLPAs publicity interest. The First Amendment, then, protects VFOs right to use the player information in its fantasy games.
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By its certification of this case, this Court may be signaling its intent to not only decide this case, but also clarify the body of publicity law generally. To the extent that the Court is keen to set straight the scope of publicity law, it should limit the right of publicity to two types of cases: right of performance and false endorsement. Both cases serve the alternate rationales underlying this Courts recognition of the right of publicity. Outside those two types of fact sets, however, neither rationale for the right of publicity is served, nor are first amendment interests limited. As a result, fashioning a bright-line rule limiting the scope of the right of publicity would go far to clarify the right of publicity.
I.
THE COURT OF APPEALS ERRED IN HOLDING THAT VFO VIOLATED NFLPAs RIGHT OF PUBLICITY BOTH AS A MATTER OF LAW AND IN VIOLATION OF POLICY CONSIDERATIONS.
Because this appeal is a reconsideration of the appellate courts reversal of the district courts grant of summary judgment to VFO, this Courts review is de novo and it should view the evidence in light most favorable to the nonmoving party, the NFLPA. C.B.C. Distribution and Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d. 818, 821 (8th Cir. 2007) (hereinafter C.B.C. II) (internal citations omitted). Summary judgment is appropriate only if there is no genuine issue as to any material fact andthe moving party is entitled to a judgment as a matter of law. Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). The facts below are not in dispute. The Court of Appeals for the Fourteenth Circuit erred as a matter of law, and summary judgment was in fact properly granted to VFO by the district court. This Court should reinstate summary judgment for VFO. xiii
A.
This Court Should Apply the Restatement Test in a Narrow Fashion to Give Meaning to the Right of Publicity.
The Court of Appeals for the Fourteenth Circuit applied the Restatement test too broadly, essentially putting the right of publicity on the first amendment chopping block. The right of publicity has roots in both state statutory and common law. C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077, 1084 (E.D. Mo. 2006) (hereinafter C.B.C. I). Tulania has adopted 46 of the Restatement (Third) of Unfair Competition (1995) to govern the right of publicity. (R. at 3). The three elements which must be present to successfully bring a right of publicity claim include: (1) use of the plaintiffs identity, (2) without consent of the plaintiff, (3) for purposes of trade. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 CMT. D (1995). Both parties agree that the second element has been satisfied because NFLPA did not consent to VFOs use after negotiations unsuccessfully ended, will not be discussed further. This Court should apply the remaining two elements to the facts of the case to find that VFO did not in fact violate the NFLPAs right of publicity. Noting that the First Amendment limits this right, See Gionfriddo v. Major League Baseball, et al., 114 Cal. Rptr. 2d 307, 318 (Cal. App. D. 2001) (balancing the First Amendment against the right of publicity), this Court should construe the elements narrowly to preserve the integrity of the right itself. 1. This Court should not construe VFOs use as an appropriation of the NFLPAs identity.
On its face, the identity element seems easily satisfied. This is because a plaintiff must show that the defendant appropriated his or her identity by using his or her name, likeness or xiv
other indicia of identity. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 (1995). VFO admits that it used the names and statistics of each and every NFL player in the league. (R. at 1). It also admits to using those names with the intention to have its target audience associate those names with the NFL players themselves. (R. at 1). VFO concedes this because the identities of the players are almost irrelevant to the people who actually play RFO. The point of the game was not to trade on the fame of any one of the players, nor to have the players make it popular. The NFL players names and information is used to simply have a set of real, functional and changing data points for RFO players to work with. That is the point of RFO, and of every fantasy game, as the district court correctly stated. (R. at 4); See also, C.B.C. I, 443 F. Supp. 2d at 1086. This type of information is also in the public domain, and is readily available to anyone who inquires. Id. Thus, this elementon its faceis literally met. However, should this Court consider how the identities are actually used in the context of the game, this element should clearly support a finding that VFO did not appropriate NFLPAs identity within the meaning of the test.
2.
VFOs use was not for purposes of trade within the meaning of 47.
It is not enough to merely use anothers identity without consent; a successful plaintiff must prove that the defendant violated his or her right of publicity for purposes of trade. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 (1995). This element also focuses on the defendants intent to use the plaintiffs identity to obtain a commercial advantage, whether by attracting attention to the product, or by implied endorsement. Doe v. TCI Cablevision, et al., 110 S.W. 3d 363, 370-71 (Mo. 2003). Here it is obviously not VFOs intent to obtain a xv
commercial advantage by utilizing the identities of the NFL players because the game uses them all. As previously noted, the commercial advantage in fantasy gaming does not lie in the fame of the athletes available; the novelty and value come from the setup and functionality of the game aspects that VFO created itself. Hypothetically speaking, so long as VFO had a comprehensive list of players and ever-changing statistics about them, the actual current NFL players would arguably have little or no effect on the viability of RFO. The players are mere game pieces for the owner to manage and trade, based on those players actual performances on the field. Had VFO wanted to appropriate the NFLPAs identity for purposes of trade, it had ample opportunity to do so. To attract potential players attention, it could have named the game after an actual NFL owner or manager, or made a pool of only the top stars in the league for owners to select from. See generally, Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Super. 1967) (right of privacy case). In Palmer, the producer of a board game incorporated the identities of 23 internationally-known professional golfers. Id. at 459. Although this case developed before the recognition of the separate and distinct right of publicity, the examining court noted that the plaintiffs intentionally traded on the fame of the well-known golfers to increase sales. Correspondingly, had VFO selected only 50 of the best players in the league to participate in a game entitled Pro-Bowl Fantasy League, NFLPA would have a valid complaint under Palmer. Id. However, because VFO has only used the publicly available information about all of the players in the league, this Court should find that VFO did not appropriate the plaintiffs identity for purposes of trade. 3. Should the Court find that VFO did appropriate NFLPAs identity for purposes of trade, an exception should apply to negate liability.
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The district court found that VFO did not violate NFLPAs right of publicity because its use came within the ambit of the exceptions created in Restatement 47, supported by First Amendment considerations. Among other things, use for purposes of trade does not ordinarily include the use of a persons identity in news reporting, [or] entertainment [ ]. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47 (1995). VFOs use can accurately be categorized as either news or entertainment. Sports have frequently been exempted from publicity violations under either exception, as the public has a great interest in both current and past sporting events. See Abdul-Jabbar v. Gen. Motors, Corp., 85 F.3d 407, 416 (discussing Montana v. San Jose Mercury News, Inc., 40 Cal. Rptr. 2d 639 (Cal. 1995), which exempted a Super Bowl poster bearing a quarterbacks picture as newsworthy) and Gionfriddo,114 Cal. Rptr. 2d at 315 (factual data concerning athletic performance [ ] commands a substantial public interest, and, therefore, is a form of expression due substantial constitutional protection.) (internal citations omitted). Although this Court could find that VFOs use was newsworthy, it is more appropriate for this Court to determine that the plaintiffs identity was used merely for entertainment, as a primary purpose of RFO is to entertain its users. Because the district court so held, (R. at 4), and the First Amendment supports such a finding, this Court should alternatively hold that VFOs use was constitutionally protected under 47. B. The Court of Appeals Reversal is Inconsistent with the Policies That Support the Right of Publicity.
The right of publicity should only be protected by courts in the contexts of performance or false endorsement cases. Recognition outside these contexts leans closer towards the right of privacy, and the right will likely be out-weighed by the First Amendment. See Sheldon W. xvii
Halpen, The Right of Publicity: Commercial Exploitation of the Associative Value of Personality, 39 VAND. L. REV. 1199, 1247 (1986) (There is an interest here to be protected and it can be protected without impairing the First Amendment.) The Court of Appeals tried to grant protection to NFLPA outside the realm where the right is principally supported. This Court should reign in recognition of the right of publicity to maintain its purpose. This Court has only directly addressed the right of publicity in a single case. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977). In Zacchini, the plaintiffa human cannonball performersuccessfully sought damages from the news station that filmed his entire act and aired it on the evening news without his permission. Id. Because the case at bar is factually dissimilar, Zacchini does not control the outcome. Id. However, this Court set out two strong policy justificationsunjust enrichment and an incentive theoryfor enforcement that support all correctly-decided right of publicity cases. 433 U.S. at 575-76. However, because neither rationale supports the case at bar, the case should be overturned. 1. VFO was not unjustly enriched by stealing NFLPAs good will.
VFO has not been unjustly enriched by the theft of good will. Id. at 576. Courts ordinarily grant relief when a defendant is getting something for free that he or she would ordinarily have paid for. Id. at 574. The plaintiff in Zacchini lost money as a result of the violation because allegedly less people wanted to see the act live. However, the unjust enrichment theory does not apply here because paying to play RFO does not entitle the user to attend NFL games for free or obtain special NFL television packages to see all of his or her fantasy players. Most importantly, RFO players will not be discouraged from wanting to see the xviii
games. Actually, the opposite is likely true. See Gionfriddo, 114 Cal. Rptr. 2d at 415 (It appears equally likely that plaintiffs marketability is enhanced by Baseballs conduct challenged here.) (emphasis added). It may even be possible that RFO players who were never NFL fans became fans solely because of the fantasy game. Surely NFLPA cannot complain about more revenue. 2. NFL players will still have an economic incentive to invest in achievement because of lucrative opportunities besides collecting VFOs royalties.
This Court also stressed the incentive theory in Zacchini, and concluded that failure to protect the statutory right of publicity would undercut the motivation to invest in creativity and achievement. 95 F.3d at 974. This rationale strongly supports other intellectual property laws, including patents and copyrights. However, unlike Mr. Zacchini, professional football players are separately compensated to play football, not to obtain license agreements. By legally preventing athletes from collecting such royalties from defendants like VFO, they are not likely to become discouraged and stop playing football. Generally speaking, athletes and celebrities are so generously compensated with salaries, bonuses, and formal endorsement deals that this extra income is not sufficient to create any incentive to achieve at all. Cardtoons, L. C. v. Major League Baseball Players Assn, 95 F.3d 959, 974 (10th Cir. 1996). C. The Court of Appeals Below Reversed the District Court Based on Two ReasonsBoth of Which are Untenable.
The district court held that because VFO did not appropriate NFLPAs identity for purposes of trade, VFO did not violate its right of publicity. (R. at 3). As previously mentioned, the analysis was thorough, up-to-date, and grounded in the rationales that support the right of xix
publicity. The Court of Appeals, in one short paragraph, reversed based on two untenable grounds: In order to find an infringement in the right of publicity in the present case, the district court would have us require two additional elements. First, they [sic] would have us require that in order to use a persons identity, one must use a persons picture or depiction of their [sic] likeness in addition to their [sic] name. Second, they [sic] would have us require that the players names or personas be used by VFO to imply endorsement or sponsorship by RFO. For the reasons stated below, we decline to make these additions and in doing so, maintain the meaningful distinction between a right of publicity action and an action based on a right of privacy.
(R. at 13) (emphasis added). 1. The district court did not require inclusion of a photograph or likeness, nor does such a requirement have a basis in publicity precedent.
The Court of Appeals below misconstrued the district courts analysis of the identity element. It interpreted the district courts analysis to suggest that the right of publicity cannot be violated by use of a persons statistical data and characteristics unless one also uses a depiction of their likeness. (R. at 14). The district court made no such requirement. It relied on C.B.C. I for guidance because it was the only court that had considered the right of publicity in the context of fantasy gaming to date. See (R. at 3-4) (citing C.B.C. I, 443 F. Supp. 2d at 1089) (holding that identity element was not met by merely using names and statistics). However, the district court went further to acknowledge that VFO also used more than names and statistics, but it was nothing more than can be observed on the field. (R. at 4). Because the information was publicly available, it was not meant to give VFO a commercial advantage. (R. at 4). Therefore, the district court did not make a finding that VFO did not use enough information to identify the xx
plaintiffs; it held that VFO did not commercially exploit those identities in the way the Restatement explicitly requires. (R. at 3) (citing RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 CMT. D (1995). 2. The district court did not expressly require a finding of implied endorsement as a prerequisite to a publicity violation, but such a requirement is rooted both in policy and precedent.
Although the right of publicity has been recognized for more than half a century, See Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir. 1953) (first court to recognize a separate right of publicity from the right to privacy), it generally has been considered in factually dissimilar contexts to fantasy gaming. The most common situation involves a false endorsement, or an owner of a product attempting to increase the popularity of the product by coupling it with a celebrity or athlete, or at very least, using his or her name to attract attention to that product (false endorsement cases). See, e.g., Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996) (car ad drawing an analogy to Kareem Abdul-Jabbars collegiate basketball achievements); White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) (robot portraying game-show host Vanna White in electronics ad); Ali, 447 F. Supp. at 723 (S.D.N.Y. 1978) (ad in magazine portraying an obvious likeness of Muhammad Ali); Doe v. TCI Cablevision, et al., 110 S.W. 3d 363 (Mo. 2003) (comic book character named after professional hockey player). They all have in common the fact that a single celebrity has been artificially attached to a product without his or her consent. As common as false endorsement cases are, however, the Court of Appeals for the Fourteenth Circuit reversed the district court, alleging the error that they [district court] would xxi
have us require that the players names or personas be used by VFO to imply endorsement or sponsorship of RFO. (R. at 13). The Court of Appeals held that a plaintiffs right of publicity could be violated without any finding of implied endorsement. See (R. at 15) (citing Uhlaender v. Hendricksen, 316 F. Supp. 1277 (D.C. Minn. 1970) and Palmer, 232 A.2d at 458). Both Uhlaender and Palmer involved board games that included professional athletesbaseball players and golfers, respectively. Those cases were published shortly after the right of publicity was first recognized in Haelan Labs in 1953. 202 F.2d at 866. Courts have since discounted the value of those decisions. See C.B.C. I, 443 F. Supp. 2d at 1087-88, n. 12 (Like Palmer, Uhlaender was decided early in the development of the recognition of the common law right of publicity and is inconsistent with more recent case authority including the Supreme Courts decision in Zacchini. As such, Uhlaender is not controlling.) Additionally, just because the lawyers in those cases didnt argue that there was, in fact, implied endorsement doesnt mean that it didnt exist. Finally, both courts assert strong policy language that illustrates the change in the way society views celebrities and professional athletes. See Uhlaender, 316 F. Supp. at 1282 (celebrities have obtained national or international recognition in a particular field of art, science, business, or other extraordinary ability.); Palmer, 232 A.2d at 462 (The names of plaintiff have become internationally famous, undoubtedly by reason of talent as well as hard work in perfecting it.) Most courts today have fewer good things to write about the celebrities and professional athletes that come before it, like Michael Vick and Britney Spears. Therefore, because this Court has several viable theories which it can reverse the appellate court, and there are no counterveiling policy concerns which would support a contrary xxii
result, this Court should ultimately find VFO has not violated NFLPAs right of publicity as a matter of law.
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II.
VFOS FIRST AMENDMENT RIGHT TO USE THE PROFESSIONAL FOOTBALL PLAYERS NAMES, STATISTICS, AND CHARACTER TRAITS IN ITS FANTASY GAMING WEBSITE SHOULD BE VINDICATED.
This Court should reverse the Court of Appeals for the Fourteenth Circuits holding that the First Amendment did not protect VFOs use of the professional football players names, statistics, and character traits (player information) and did not, as a result, limit the scope of NFLPAs right of publicity. (R. at 17). Contrary to the Court of Appeals decision, VFOs use of the player information should be provided full protection under the First Amendment. Moreover, NFLPA cannot show a significant publicity interest is served by denying VFOs use of the player information. Accordingly, when balanced, VFOs first amendment interest in its use of the player information is weightier than NFLPAs publicity interest in the same information. Therefore, VFOs use of the player information should be fully protected by the First Amendment. Moreover, in the event that the Court reverses the Court of Appeals, the Court would then be in a position to fashion a coherent bright-line rule clarifying the scope of the right to privacy. In light of the First Amendment, the right of publicity can only extend to two specific types of cases: right of performance and false endorsement. In right of performance and false endorsement cases, a plaintiffs publicity interest is necessarily weightier than a defendants first amendment interest. Outside those two specific types of cases, however, a defendants first amendment interest is necessarily weightier than a plaintiffs publicity interest. This much needed bright-line rule is only possible, though, upon this Courts reversal of the Court of Appeals decision below.
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A.
VFOs First Amendment Interest in its Use of the Player Information Outweighs the NFLPAs Publicity Interest in the Same Information.
In analyzing whether a defendants infringement of publicity is nevertheless protected by the First Amendment, courts balance free speech interests against publicity interests according to the relative importance of the interests at stake. CBC II, 505 F.3d at 823 (8th Cir. 2007) (citing Zacchini, 433 U.S. at 562). Accordingly, the Court should determine the extent of VFOs first amendment interest in the challenged expression and, in addition, determine the extent of NFLPAs publicity interest denying the use of same information. See id. Then, the Court should weigh the relative importance of the two interests. See id. If VFOs first amendment interest in the Player Information is weightier than NFLPAs countervailing publicity interest, then the Court should reverse the Court of Appeals decision on its First Amendment ground. See id. 1. VFOs use of the Player Information constitutes pure speech and, as such, should be afforded full First Amendment protection.
The First Amendment does not afford all expression the same degree of protection from government regulation: (1) non-speech is expression that falls outside the ambit of the First Amendment and therefore is unprotected; (2) pure speech, by contrast, is expression that falls within the ambit of the First Amendment and is afforded full protection; and (3) commercial speech is expression that falls within the First Amendment but is less protected than pure speech. See Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm. of N.Y., 447 U.S. 557, 561-64 (1980) xxv
(discussing the the First Amendments diminished protection of commercial speech). Courts, therefore, must first determine whether the challenged expression falls within the ambit of the First Amendment. CBC II., 505 F.3d at 823. Where the expression is protected by the First Amendment, courts then consider whether the expression is pure speech entitled to full protection from government regulation. See Cent. Hudson, 447 U.S. at 561-64. a. The player information is speech within the ambit of the First Amendment.
Courts define speech broadly for First Amendment purposes. See Cardtoons, 95 F.3d at 969. To be sure, traditional mediums of expression, like newspapers, are no more protected than an innovative medium of expression, like an internet website. See, e.g., CBC I, 443 F. Supp. 2d 1092 (noting the First Amendment has been applied to such innovative forms of expression as flag burning, nude dancing, and jacket wearing). To the extent the Court of Appeals below held otherwise, it erred. See (R. at 16) (finding the player information was not the type of expressive speech that the First Amendment intended to protect). Indeed, the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games is speech within the ambit of the First Amendment. Interactive Digital Software Assn v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir. 2003). Little can distinguish the player information on VFOs interactive gaming website from the elements that comprise a video game. Moreover, to conclude the player information is anything other than speech would overrule numerous courts that have already considered this issue in the fantasy gaming context. 1 CBC II, 505 F.3d at 823; CBC I, 443 F.
Expressive activity need not be serious to gain first amendment protection. Zacchini, 433 U.S. at 578. See also Cardtoons, 95 F.3d at 969 (quoting Winters v. New York, 333 U.S. 507, 510 (1948) (holding
1
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Supp. 2d at 1092-1094; Gionfriddo, 114 Cal. Rptr. 2d at 314-15. Therefore, the player
information should be deemed speech and gain First Amendment protection against Tulanias common law right of publicity, which functions as a regulation on speech.
b.
VFOs use of the player information is pure speech and therefore should be afforded full first amendment protection.
The Constitution affords pure speech full protection from government regulation. See Cent. Hudson, 447 U.S. at 564. The objective factual data and subjective commentary on VFOs website is no different than newsworthy information that newspapers report daily. See Cohen v. Cowles Media Co., 501 U.S. 663, 668-69 (the First Amendment protects a newspapers right to publish truthful information about a matter of public significance). Here, VFO uses factual data in the public domain to update the information in its game, RFO. (R. at 12). VFO then does nothing materially different from on-line newspapers, absent offering what some may find to be a more entertaining product. (R. at 11). Moreover, courts that have considered this issue in the internet fantasy sports context hold that the player information, which makes the game possible, should be provided full protection by the First Amendment. CBC II, 505 F.3d at 823-24; Gionfriddo, 94 Cal. Rptr. 2d at 411 (finding the data concerning athletic performance to be of public value). Thus, VFOs speech is pure speech and should be provided full first amendment protection. Accordingly, to the extent that the Court of Appeals below found that the fantasy games involved commercial speech, it erred. (R. at 16) (even if these fantasy games were construed to involve speech, this speech is most certainly commercial speech). Commercial speech is best
entertaining speech, as well as newsworthy speech, is entitled to full first amendment protection)). Moreover, speech espoused for profit also retains first amendment protection. Time, Inc. v. Hill, 385 U.S. 374, 396-97 (1967) (the fact that books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment). Finally, the fact that speech has the ability to be interactive will not preclude first amendment protection. Interactive Digital Software, 329 F.3d at 957
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understood as speech that merely advertises a product or service for business purposes. Cardtoons, 95 F.3d at 970 (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996) (outlining a brief history of commercial speech that is, essentially a history of advertising)). Stated differently, [s]peech that does no more than propose a commercial transaction [ ] is commercial speech. Id. In Cardtoons, for example, the Court of Appeals for the Tenth Circuit analyzed whether a product sold in the marketplaceparody baseball cardsconstituted commercial speech. Id. at 970. The court determined that parody baseball cards did not advertise a product for business purposes; the cards, instead, merely disclosed professional baseball player information. Id. As a result, the court held that the challenged expression did not fit within the definition for commercial speech. Id. Moreover, the fact that the parody baseball cards were sold in the marketplace for profit did not transform the cards into commercial speech. Id. (citing Va State Bd. of Pharmacy v. Va Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976)). Here, VFOs use of the player information neither directly, nor indirectly, proposes a commercial transaction. The player information, rather, merely comprises a part of the final product that VFO intends to sell. Herelike the player information printed on the parody baseball cards in Cardtoons, 95 F.3d at 970the expressive activity does not propose, or even advertise, a commercial transaction.
2
Consequently, VFOs use of the player information cannot meet the
definition for commercial speech.
2.
The players publicity interest is not implicated on these facts.
This Court recognizes that all individuals have a right of publicity. Zacchini, 433 U.S. at 573. The right of publicity protect[s] the proprietary interest of the individual in his act in part to encourage such entertainment. Id. This Court enunciated two justifications in recognizing the right of publicity. Id. 575-576. First, the right of publicity provides individuals an economic
The fact that VFOs website, like the parody baseball cards in Cardtoons, may command value in the marketplace is immaterial. See id.
2
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incentive to invest in creating performances. Id. at 575. Second, it prevents unjust enrichment by the theft of an individuals goodwill. Id. The facts of this case do not implicate either justification for the right of publicity.
a.
Professional football players do not receive an appreciable economic incentive to play in the National Football League from an ability to control the dissemination of their professional information.
Professional athletes are compensated handsomely for performance in their sport. See C.B.C. II, 505 F.3d at 824; Cardtoons, 95 F.3d at 973-74 (noting major league baseball players salaries average over one million dollars a year). Thus, once players achieve professional status in the football ranks, the wealth they enjoy is considerable. Add the sponsorships and shoe deals, and most want for nothing. See C.B.C. II, 505 F.3d at 824. And it is that huge pay-off that drives the young athlete to play professionally. See Cardtoons, 95 F.3d at 974. Simply put, whether the NFLPA is permitted to license the player information through the right of publicity, will not measurably decrease the economic incentive to play football professionally. See Cardtoons, 95 F.3d at 973 (acknowledging the economic incentive rationale is at least strained in the context fantasy sports gaming because it would leave entirely unimpaired a celebritys ability to earn a living from the activities that [] generated his commercially marketable fame) (quoting Michael
xxix
Madow, Private Ownership of Public Image: Popular Culture and Publicity Rights, 81 Cal. L. Rev. 127, 209 (1993)). An additional aspect of the economic rationale underlying the right of publicity seeks to ensure that celebrities reap the rewards of his or her endeavors. Id. Notably, however, denying NFLPAs publicity claim for control of the player information will not deprive the players the rewards of their endeavor. The players statistics become part of the public domain and therefore cannot be parsed out at the players discretion. (R. at 11). Thus, the player information is not, nor has it ever been, a reward a player has been entitled to. Indeed, it was VFOs technological skill and entrepreneurial ability that launched the fantasy game. The player information was incorporated, but that information had to undergo significant work to transform it into a usable format for the gaming experience. Thus, it cannot be said that the players endeavored to create the create VFOs popular website. Consequently, no economic rationale fits the facts here. Id. at 974. b. VFO is not unjustly enriched by using the player information.
Unjust enrichment occurs where one profits from anothers enterprise. See id. at 974-75. Unjust enrichment frequently occurs, for example, in false endorsement suits. See generally White, 971 F.2d at 1400-01 (holding a robot dressed in like Vanna White next to a Wheel of Fortune set raised sufficient question of fact as to whether she endorsed Samsngs products to preclude summary judgment); Abdul-Jabbar, 85 F.3d 407 (holding that General Motors use of a basketball stars name in a television commercial may have suggested that the star endorsed General Motors products). In White, the television icon, Vanna White, sued Samsung xxx
Electronics, for airing a television commercial that depicted a robot, dressed in a wig, gown, and jewelry, thereby resembling Vanna White. 971 F.2d at 1396. The robot was posed next to a game board that was recognizable as the Wheel a Fortune game show set. Id. White neither consented to the ad, nor was she paid. Id. Nevertheless, a federal district court granted summary judgment against White on her claim of publicity. Id. On appeal, the Court of Appeals for the Ninth Circuit reversed, finding that there was a triable issue of fact as to whether Samsung appropriated her identity in the television advertisement. Id. at 1401. Thus, if Samsung did indeed appropriate Whites identity to endorse Samsungs product, then unjust enrichment would have occurred. Here, by contrast, unjust enrichment could not possibly have occurred. Unlike the facts in White, VFO did not appropriate celebrity identity in a commercial context. See id. at 1396-97. As a result, it is unlikely that anyone would believe the players had endorsed the product. Thus, the players cannot be said to have been wronged because their identity had not been appropriated in a commercial context. 3. VFOs first amendment interest in offering its fantasy football products is therefore weightier than the players publicity interest.
When analyzing parties competing rights in the First Amendment and the right of publicity, courts weigh the relative strength of each partys interest in her claimed right; the party who holds the weightier interest will prevail in the lawsuit. Zacchini, 433 U.S. at 574-575. The Court of Appeals for the Eighth Circuit recently analyzed the issue that is presently before this Court. See C.B.C. II, 505 F.3d at 823-24. In C.B.C. II, a purveyor of fantasy baseball products (C.B.C.) sought a declaratory judgment to establish its right to use, without a license, professional baseball player information for C.B.C.s online fantasy games. Id. at 820-21. The xxxi
district court granted C.B.C. summary judgment, holding that C.B.C. did not infringe on Major League Baseballs right to publicity, and even if C.B.C. did infringe, the first amendment preempted the players rights of publicity. Id. at 821. Major League Baseball appealed. Id. The Court of Appeals affirmed the district courts finding on the dispositive issue. Id. 824. The First Amendment, the Court of Appeals held, protects C.B.C.s decision to offering professional baseball player information in its fantasy baseball products....