A recent Cardozo Law Review article entitled "Who Owns the Back of a Baseball Card?: A Baseball Player's Rights In His Performance Statistics" sheds some light on the copyright infringement and IP violation dangers new technology imparts on professional sports, Major League Baseball in particular.
A decline in attendance and revenue was a key reason in MLB's decision to incorporate new technology into the League in hopes of "revitalizing the game." Web sites, satellite radio, e-commerce, "real time" gamecasts, fantasy sports leagues and virtual sports teams are becoming commonplace, as well as significantly increasing revenue for all professional sports. The Internet is by far the most creative outlet for new technology; many minor league sports teams offer their fans live web casts or radio broadcasts of games. The Internet is also host to over 30,000 fantasy sports websites - another technological advancement of professional sports that has grown exponentially over the past few years.
The success of an "owner's" fantasy baseball team depends on his players' statistics throughout the season. There are many Internet services which will provide "assistance" with statistics (for a fee, of course) strengthening the argument that "at the center of the fantasy league concept is access to real life/ real time performance statistics. Without access to these performance statistics and the names of players, the game loses its real feel."
Since most MLB player statistics are complied in some sort of database, the copyright issue is "whether any ownership or property interest in the database or compilation is protected by federal or state law?" The concern is that without protection, the economic value of the database significantly decreases. The article notes that although most databases/compilations are made up of pre-existing statistics, there are certain instances in which copyright protection will be afforded.
"A ‘compilation’ is a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such a way that the resulting work as a whole constitutes an original work of authorship. The Term ‘compilation’ includes collective works." This definition is important because the Supreme Court has long held that originality is necessary in obtaining copyright protection. The grey area in fantasy sports exists because facts, or the act of gathering them, do not qualify as original works - they are not works of authorship. The angle databases are arguing is that the compilation itself is a "work of authorship," and therefore warrants protection. The other side of the coin is that originality equates an independent creation, not simply copying other works and compiling them into a database ("the sweat of the brow does not originality make").
An important decision in Feist Publications, Inc. v. Rural Telephone Service Co., Inc. is applicable here. Not only did the court reject the "sweat of the brow" position and reiterate the need for originality, but they went on to consider the question whether a factual compilation was worthy of protection. Reasoning that "certain factual works may possess the requisite modicum of creativity to warrant copyright protection," the court held that in some cases, compilations could be protected under copyright law.
So, compilations can often have the necessary degree of originality essential in obtaining copyright protection. What separates fantasy sports statistical compilations from an ordinary, purely factual database is that "a compilation selects specific facts, in what order to place them, and how to arrange data so that readers can effectively use (the information.)" The economic value of a compilation - in this case, the fee charged by Internet services to fantasy baseball players - is not sufficient in itself to be considered worthy of copyright protection.
A player's individual right to publicity, however, negates the "original" argument to some extent, as they help protect statistics and make it seem apparent that "a third party may not use a database of players' names and performance statistics in a fantasy league game without consent or some form of compensation." If the Internet services would pay a portion of their profits to the MLBPA (or the MLB itself, depending on who owns the rights to a game, the League or the player - a subject under heated debate), perhaps the problem would be solved. But for now, copyright law grants limited protection to compilations that meet the 'original' standard, and publicity rights protect players and league owners from unauthorized or uncompensated use of performance statistics.
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