IN THE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER. TEAM DD Counsel of Record

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1 IN THE VIRTUAL FOOTBALL OWNER, INC., v. Petitioner, NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR PETITIONER January 5, 2008 TEAM DD Counsel of Record Counsel for Petitioner Virtual Football Owner, Inc. 1

2 QUESTIONS PRESENTED I. Whether the Court of Appeals erred when it held that Virtual Football Owner, Inc. s internet fantasy football games violated the players right of publicity under the state law of Tulania. II. Whether the Court of Appeals erred when it held that Virtual Football Owner, Inc. s internet fantasy football games are not protected by the First Amendment. i

3 TABLE OF CONTENTS QUESTIONS PRESENTED... i TABLE OF CONTENTS... ii TABLE OF AUTHORITIES... iv STATEMENT OF THE CASE... 1 I. Background... 1 II. Proceedings Below... 2 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 7 I. PETITIONER DID NOT APPROPRIATE THE RESPONDENT PLAYERS IDENTITIES A. Mere Proof that an Individual s Name was Used in Reference to that Individual is Insufficient to Demonstrate an Appropriation of Identity B. An Individual s Name has not been Appropriated Unless the Name has been Used as a Symbol of that Individual s Identity Statistics do Not Implicate a Player s Identity Petitioner did Not Appropriate the Players Identities II. PETITIONER DID NOT USE THE RESPONDENT PLAYERS IDENTITIES FOR PURPOSES OF TRADE A. Tulania s Statute Carefully Guards Against Expansions of the Right of Publicity B. Under Tulania s Statute, Petitioner did not Use the Respondent Players Identities For Purposes of Trade C. Even if Petitioner Used the Respondent Players Identities For Purposes of Trade, Petitioner is Not Liable for a Breach of the Right of Publicity Because Its Use was in a Work of News and Entertainment III. PETITIONER S INTERNET FANTASY FOOTBALL GAME IS PROTECTED BY THE FIRST AMENDMENT ii

4 A. Tulania s Protection of the Players Right of Publicity Constitutes State Action B. Petitioner s Internet Fantasy Football Games are Protected Speech under the First Amendment C. The Fantasy Football Games are not Commercial Speech IV. PETITIONER S FIRST AMENDMENT INTERESTS OUTWEIGH ANY COMPETING INTERESTS CREATED BY THE PLAYERS RIGHT OF PUBLICITY CONCLUSION iii

5 TABLE OF AUTHORITIES Cases C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2006).... passim C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007).... passim Cardtoons L.C. v. Major League Baseball Players Ass n, 95 F.3d 959 (10th Cir. 1996).... passim Cent. Hudson Gas & Elec. Corp. v. Public Service Comm n of New York, 447 U.S. 557 (1980) Cohen v. Cowles Media Co., 501 U.S. 663 (1991) , 23 Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) , 13, 28, 29 Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (Cal. Ct. App. 2001) , 26 Interactive Digital Software Ass n v. St. Louis County, Mo., 329 F.3d 954 (8th Cir. 2003) 17, 19, 20, 21 Int'l News Serv. v. Associated Press, 248 U.S. 215 (1918) , 26 Palmer v. Schonhorn Enters., Inc., 232 A.2d 458 (N.J. Super. Ch. Div. 1967).... passim Time, Inc. v. Hill, 385 U.S. 374 (1967).... passim Uhlaender v. Henricksen, 316 F. Supp (D. Minn. 1970) , 15, 16 White v. Samsung Elecs. America, Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977).... passim Secondary Sources RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 (1995).... passim RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47 (1995).... passim iv

6 I. Background STATEMENT OF THE CASE Respondent National Football League Players Association ( NFLPA ) is the exclusive bargaining representative and interactive media and internet agent for National Football League ( NFL ) players. (R. at 1.) Petitioner Virtual Football Owner, Inc. ( VFO ) is a Tulania corporation that sells online fantasy sports products, including fantasy football games. (R. at 1). VFO s fantasy football games are only available to subscribers who have paid to play these games. (R. at 1). VFO s football games revolve around the actual NFL season; before the season starts, each subscriber creates a team by selecting real-life NFL players. (R. at 1.) These subscribers compete to own the most successful team. (R. at 1.) A team s success is measured by the statistics that its players compile for their NFL teams. (R at 1.) During the season, fantasy owners are permitted, for an additional fee, to trade players in order to improve their team s performance. (R. at 1.) VFO s most popular fantasy football game, Real Football Owner ( RFO ), strives to re-create the actual experience of running a NFL team by providing subscribers with the same up-to-date statistical information that NFL coaches and owners have available to them. (R. at 1.) Specifically, VFO provides subscribers with statistical tools, including facts that are typically found in box scores and VFO-generated scouting reports that use publicly available statistics and news reports to generate new insights into players performances. (R. at 1-2, 11.) For example, a scouting report on Rex Grossman shows that the quarterback is less effective against run defenses. (R. at 2.) Between April 1996 and March 2005, the NFLPA and VFO were parties to a license agreement that permitted VFO to use Players Rights in its fantasy products. (R. at 2.) The agreement defined Players Rights as the names, nicknames, likenesses, pictures, playing 1

7 records, on-field personality traits, and/or biographical data of each player. (R. at 2.) After the license agreement expired, the parties entered into renewal negotiations, but could not come to an agreement. (R. at 2.) VFO continued to run the RFO fantasy game on its website, without a license, and the game still featured actual players names and performance records. (R. at 2.) In response, the NFLPA sued VFO on May 20, 2005, alleging that VFO was violating its members right of publicity. (R. at 2.) The NFLPA asked for both damages and an injunction to stop VFO from using the Players Rights. (R. at 2.) In response, VFO claimed that its use of players names and performance records did not violate players right of publicity. (R. at 2.) VFO also argued that it cannot be held liable because its conduct was protected by the First Amendment. (R. at 2.) VFO then filed a motion for summary judgment. (R. at 3.) II. Proceedings Below The district court granted VFO s motion for summary judgment because the company did not violate the football players right of publicity. (R. at 3-6.) Tulania has enacted Restatement (Third) of Unfair Competition 46 (1995) to control the right of publicity, and the court held that two of the elements needed to demonstrate a violation of this right were not satisfied: the appropriation of the plaintiffs identities and the use of these identities for purposes of trade. (R. at 6.) The court held that VFO did not appropriate the players identities because its use of these individuals names and performance records did not implicate the players personalities or identifying characteristics. (R. at 4.) According to the court, VFO did not use the players names and performance records for purposes of trade because the company neither attempted to associate any individual player with its fantasy products nor unjustly enriched itself at the players expense; VFO made use of all NFL players names and statistics and wrote its scouting reports based entirely on information in the public domain. (R. at 4-6.) The district court also 2

8 held that VFO s fantasy games are entertainment programs and are, therefore, not for purposes of trade. (R. at 4.) Assuming arguendo that VFO violated the players right of publicity, the district court held that VFO s conduct was protected by the First Amendment. (R. at 6-8.) The court ruled that the First Amendment applies to the for-profit dissemination of statistical information within an interactive game. (R. at 6-7.) The court held that when a First Amendment defense is raised in a right of publicity case, the publicity rights at issue must be balanced against the implicated free speech rights. (R. at 7.) According to the court, VFO s free speech rights take precedence over the players publicity rights because it is more important to protect VFO s dissemination of newsworthy facts, including statistics, than the players minimal economic interest in preventing VFO s conduct. (R. at 8.) On appeal, the Fourteenth Circuit Court of Appeals fully reversed the ruling of the district court, finding that the NFLPA satisfied all elements of its right of publicity action and that VFO s actions were not protected by the First Amendment. (R. at ) The Court of Appeals ruled that VFO appropriated the players identities because its scouting reports implicate players character traits and tendencies. (R. at 14.) Furthermore, the players identities were used for purposes of trade, according to the court, because professional football players identities were VFO s product. (R. at 15.) The court found that all incorporations of a person s identity into a commercial product, which are not for the purpose of circulating news, are for purposes of trade, and it found that VFO did not use the NFLPA s members identities in order to disseminate news. (R. at 15.) Lastly, the court ruled that VFO s game is not protected by the First Amendment because the company failed to transform its use of the players identities into expressive speech. (R. at ) According to the court, VFO s products did not include any 3

9 creative elements added by the company; the court found that VFO merely sold NFL players identities to consumers and, therefore, should not be allowed to free-ride on the celebrity and the economic value of the NFL players. (R. at 16.) SUMMARY OF THE ARGUMENT To prove a violation of the right of publicity, a plaintiff must demonstrate that (1) the defendant appropriated the plaintiff s identity, (2) without consent, (3) for purposes of trade. In the instant case, the Respondent cannot fulfill the first and third requirements. Not all uses of an individual s name violate the right of publicity; an appropriation only occurs if an individual s name is used as a symbol of that individual s identity. Tulania adopted the Restatement to govern the right of publicity, so, to determine whether Respondent players identities have been appropriated, this court must consider the nature and extent of the identifying characteristics used by the [Petitioner], the [Petitioner s] intent, the fame of the [Respondent], evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 cmt. d (1995). In the case at bar, Petitioner did not intend to create the impression that certain players endorsed its fantasy sports games, as the company used every NFL player s name. Also, in cases where a violation of the right of publicity was found, the identifying characteristics used by the defendant were of such a nature and such an extent as to clearly appropriate the personality of the plaintiff. The statistics and scouting reports published by Petitioner do not implicate players personalities because they are merely historical facts. Even though the Respondent players were identified by the use of their names, their right of publicity was not violated because the mere use 4

10 of an individual s name in reference to that individual is not sufficient to establish an appropriation of identity. Even if this Court finds that the Petitioner appropriated the players identities, it did not violate their right of publicity unless it used those identities for purposes of trade. Under the Restatement, individuals identities are only used for purposes of trade, outside of the advertising and merchandising context, when a substantial appropriation of those individuals identities has taken place. The Restatement lists two categories of substantial appropriations (reproductions or imitations of an individual s performance, and false implications that a player is associated with a product), thereby defining for purposes of trade narrowly, in order to promote free expression. Neither category applies to Petitioner because the company did not broadcast NFL games without a license, and it did not imply that any particular player is associated with its game. Because Petitioner did not use the players identities in its advertising, on its merchandise, or in any way that creates a substantial appropriation, the company did not use the players identities for purposes of trade. Additionally, under the Restatement, news, entertainment, and creative works are generally not actionable as violations of the right of publicity. Petitioner is exempted from liability, under this provision, because its fantasy games qualify as both news and entertainment; the games, like sports news magazines and websites, disseminate regularly updated statistical reports and are creative works distributed for subscribers entertainment. Petitioner s internet fantasy football game and related content are protected by the First Amendment. In order to receive First Amendment protection, Petitioner must show that the product constitutes speech or expression within the meaning of the First Amendment and that this expression is being limited by state action. If this Court holds that Petitioner s fantasy 5

11 football game and related content violate Respondents right of publicity, then the state action requirement for application of the First Amendment to the states through the Fourteenth Amendment will be met. The state has created the right of publicity by statute. If that right limits Petitioner s freedom to maintain their internet fantasy football game, then the state action requirement is met. The First Amendment, which preserves freedom of expression, protects Petitioner s internet fantasy football game. The Supreme Court has stated that this freedom must be given a broad construction, applies to entertainment, and does not require that the speech in question promote a particular message. The fact that the expression is presented in a novel, digital format does not remove it from First Amendment protection, and neither does its competitive, interactive nature. The internet fantasy football game also should not receive the lesser protection afforded to commercial speech, which is defined as speech that serves no purpose other than to propose or advertise a transaction. Petitioner s game and content are ends in themselves, and not means to facilitate some other commercial activity. Petitioner s First Amendment rights outweigh any interest that Respondents may have in a right of publicity. An inherent tension exists between these two sets of rights, and if both are implicated in this case then the Court must balance the competing interests. The law of Tulania recognizes the primacy of the First Amendment in this area and dictates that when the two interests conflict the right of publicity must yield. In addition, a ruling that barred Petitioner from providing the fantasy football services would completely destroy its First Amendment rights because there is no alternative outlet for this expression. On the other hand, Petitioner s fantasy football services do not infringe on any of the interests that the right of publicity is intended to protect because Petitioner does not directly compete with Respondents, Respondents 6

12 are still able to profit from their performances, and Respondents probably benefit from Petitioner s game. ARGUMENT A Tulania statute, which replicates the entirety of 46 of the Restatement (Third) of Unfair Competition (1995), protects an individual against the appropriation of the commercial value of [that individual s] identity. To prove a violation of one s right to exclusively control this commercial value, commonly known as the right of publicity, a plaintiff must demonstrate that (1) the defendant appropriated the plaintiff s identity, (2) without consent, (3) for purposes of trade. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47 cmts. d, f (1995). In the instant case, Respondent cannot fulfill the first and third requirements. I. PETITIONER DID NOT APPROPRIATE THE RESPONDENT PLAYERS IDENTITIES. To determine if a plaintiff s identity has been appropriated, courts that apply the Restatement must consider the nature and extent of the identifying characteristics used by the defendant, the defendant s intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 cmt. d (1995). Respondent claims that Petitioner s use of (1) NFL players names, (2) these players publicly available performance records, and (3) scouting reports generated by Petitioner, concerning players individual tendencies, constitute an appropriation of its players identities. (R. at 2.) In fact, none of these uses appropriate the NFL players identities. A. Mere Proof that an Individual s Name was Used in Reference to that Individual is Insufficient to Demonstrate an Appropriation of Identity. In a recent decision, the Eighth Circuit addressed whether the use of a player s name, in a 7

13 fantasy sports game, constitutes an appropriation of his identity. C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). The court held that when a name alone is sufficient to establish identity, the defendant s use of the name satisfies the plaintiff s burden to show that a name was used as a symbol of identity. Id. at 822. The Eighth Circuit s ruling would be inappropriate, if decided under Tulania law, because the Court did not apply the Restatement s identity test to the facts and, instead, endorsed the plaintiff s argument that the identity element is met by the mere confirmation that the name used, in fact, refers to the famous person asserting the violation. Id. For a defendant s use of a plaintiff s name to be actionable, the name must be understood by the audience as referring to the plaintiff, RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 cmt. d (1995), but this issue is not dispositive. C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077, 1089 (E.D. Mo. 2006); See (R. at 3.) Because Tulania has adopted the Restatement, all alleged appropriations of a plaintiff s identity, including use of a name, must be examined under the five-factor analysis of Restatement (Third) of Unfair Competition 46 cmt. d (1995). If this Court holds that the mere use of an individual s name in reference to that individual is sufficient to establish an appropriation of identity, then three prongs of Tulania s identity test will become mere surplusage. The fourth and fifth factors of Tulania s identity test, actual identification by third persons, and evidence of audience perceptions, address whether a defendant s use of a name actually references the plaintiff. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 cmt. d (1995). In contrast, the other three factors, the nature and extent of the identifying characteristics, the defendant s intent, [and] the fame of the plaintiff, address unrelated issues. Id. Applying the Eighth Circuit s holding in C.B.C. to this 8

14 case would make audience perception dispositive: if an individual is identified by the use of his name, then that individual s identity has been appropriated regardless of the defendant s intent or how minor the identifying characteristics used were. See C.B.C. Distrib., 505 F.3d at Because the instant case is governed by the Restatement, this Court must consider all five of the Restatement factors in determining whether the players identities have been appropriated; application of the Eighth Circuit s holding would negate three of the five Restatement factors. See Id. In the State of New York, the mere use of a person s name, portrait, or picture is sufficient to demonstrate an appropriation of identity. Palmer v. Schonhorn Enters., Inc., 232 A.2d 458, 461 (N.J. Super. Ch. Div. 1967). Tulania was free to draft similar legislation, but instead chose to protect the identity of individuals, rather than their names. Tulania s decision is consistent with the Restatement s concern that a broad construction of the publicity right will chill freedom of expression. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 46 cmt. c, 47 cmt. c. In the instant case, Petitioner used the Respondent members names, but it did not appropriate their identities. B. An Individual s Name has not been Appropriated Unless the Name has been Used as a Symbol of that Individual s Identity. The district court that heard the C.B.C. Distribution case held that an appropriation of identity only occurs if an individual s name is used as a symbol of [that individual s] identity. C.B.C. Distrib., 443 F. Supp. 2d at Unlike the Eighth Circuit, the district court employed the five-factor Restatement analysis to determine whether the players names were used to symbolize their identities. Id. at Because the district court properly applied the Restatement test, its decision must be followed in the instant case. The intent of the defendant is a key element of the Restatement analysis. For example, 9

15 proof that defendants intend to create the impression that [a famous hockey player] is somehow associated with defendants [comic book] shows an intent to appropriate that hockey player s identity. Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003). In C.B.C. Distribution, like the instant case, the defendant did not imply that certain players endorsed its fantasy sports game because the game used the names of every player in the respective league. See C.B.C. Distrib., 443 F. Supp. 2d at In cases that found violations, or potential violations, of the right of publicity, the identifying characteristics used by the defendant were of such a nature and such an extent as to clearly appropriate the character, personality, reputation, or physical appearance of the plaintiff. C.B.C. Distrib., 443 F. Supp. 2d at In the most obvious case of appropriation, a television broadcasting company aired the entirety of an entertainer s performance. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 576 (1977). In another case, a comic book writer created a character that appropriated a famous hockey player s common persona of a tough guy enforcer. TCI, 110 S.W.3d at 370. Lastly, an electronics company created a commercial that used a robot to appropriate a television presenter s signature stance and style of dress. White v. Samsung Elecs. America, Inc., 971 F.2d 1395, 1399 (9th Cir. 1992). Unlike these defendants, Petitioner did not appropriate the Respondent players identities because the statistics that it disseminated do not implicate personality. See infra pp Statistics do Not Implicate a Player s Identity. After considering the Restatement test, the district court in C.B.C. Distribution held that a provider of online fantasy baseball games, which publishes MLB player[s] names plus their performance records without a license, does not violate the players right of publicity, because the mere use of a name as a name is not tortious. 443 F. Supp. 2d at 1082, Instead, to 10

16 be actionable, a name must symbolize an individual s identity by being presented in conjunction with information that implicates that individual s personality. Id. Baseball statistics do not implicate a player s identity because they are merely historical facts. Id.; see also Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307, 314 (Cal. Ct. App. 2001). Thus, in C.B.C. Distribution, even though the baseball-player plaintiffs were famous and the use of their names would lead to actual identification by third parties, the district court found no violation of the right of publicity because the identifying characteristics used by the defendant did not implicate identity, and the defendant did not intend to associate the plaintiffs identities with its fantasy games. 1 See C.B.C. Distrib., 443 F. Supp. 2d at Petitioner did Not Appropriate the Players Identities. Because Petitioner, like the defendant in C.B.C. Distribution, uses players names strictly in association with statistical reports, rather than representations of character, personality, reputation, or physical appearance, the players identities were not appropriated. See id. In its analysis of this case, the Fourteenth Circuit found that Petitioner s Real Football Owner game is distinguishable from the fantasy games sold by the defendant in C.B.C. Distribution because the former contains scouting reports generated by Petitioner. (R. at 14.) The circuit court s distinction is mistaken because these reports are merely an advanced form of statistics, rather than an appropriation of players personalities. The authors of these reports carefully scrutinize publicly-available information in order to better understand players performances. For example, a quarterback s season statistics will indicate that he has achieved a certain completion rate. 1 While Palmer v. Schonhorn Enters., Inc., 232 A.2d 458 (N.J. Super. Ch. Div. 1967), and Uhlaender v. Henricksen, 316 F. Supp (D. Minn. 1970), deal with similar facts (the right of publicity with regard to professional sports statistics), these cases arose in jurisdictions that did not explicitly require use of a plaintiff s identity in order to establish a violation of the right of publicity, and thus are not applicable to the instant case. 11

17 While this information is useful to fantasy football players, Petitioner s statistics are superior because subscribers learn, for example, that the aforementioned quarterback s completion rate is significantly lower against a specific defensive formation. Petitioner s scouting reports are valuable because the company invests the labor, skill, and money needed to develop insights into a player s statistical results. Int'l News Serv. v. Associated Press, 248 U.S. 215, 239 (1918). If any party has a property interest in Petitioner s reports, it is the Petitioner itself, which generated a valuable analysis from what is plainly visible on the field. (R. at 4.) Petitioner is not unjustly enriching itself at the players expense, because professional athletes earn a living playing [sports] and endorsing products; they do not earn a living by the publication of their playing records. C.B.C. Distrib., 443 F. Supp. 2d at II. PETITIONER DID NOT USE THE RESPONDENT PLAYERS IDENTITIES FOR PURPOSES OF TRADE. Even if this Court finds that the players identities were appropriated, Petitioner is not liable unless Respondent demonstrates that the company used the players identities for purposes of trade. 2 In the district court s decision, Judge Dicta correctly held that an identity is only used for trade purposes if its use relate[s] to marketing a product by associating it with the famous name in question. (R. at 4.) Therefore, to satisfy the for purposes of trade requirement, Petitioner must suggest that the players are associated with its games, for example, by running an advertisement that features one of the players or by placing a player s image on the game itself. See C.B.C. Distrib., 443 F. Supp. 2d at A. Tulania s Statute Carefully Guards Against Expansions of the Right of Publicity. 2 Under Tulania law, an individual s identity is used for purposes of trade if it is used in advertising the user s goods or services, or [is] placed on merchandise marketed by the user, or [is] used in connection with services rendered by the user. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47 (1995). 12

18 Judge Dicta s test correctly interprets the meaning of Tulania s statute, which is directed at stopping the unauthorized use of individuals identities in advertising and merchandising. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47 cmts. a, b, d (1995). The third category under which the for purposes of trade requirement is met---use of an individual s identity in connection with services rendered by the user ---is explicitly limited by the Restatement. 47, cmt. d. An extension of the right of publicity beyond advertising and merchandising uses is only appropriate when a substantial appropriation of a person s identity has taken place, and the Restatement identifies two categories of substantial appropriations. Id. First, a substantial appropriation occurs when a plaintiff s performance itself has been appropriated via reproduction or imitation. Id. This was the case in Zacchini, where the entirety of the entertainer s performance was broadcast without his permission, thereby depriving him of both compensation for the time and effort invested in his act and the economic incentive to produce a performance of interest to the public. 433 U.S. at 576. In the case at bar, Petitioner is not broadcasting games without a license, and Petitioner s game, rather than depriving players of compensation for playing, promotes football players economic incentive to perform because it stimulates interest in the NFL. (R. at 6.) A substantial appropriation also occurs when a defendant falsely implies that an individual endorses a product or, in some other way, participates in its sale. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47, cmt. d (1995). In TCI, a comic book author used a famous hockey player s identity in order to mislead readers into thinking that the player was somehow associated with the comic. Doe v. TCI Cablevision, 110 S.W.3d 363, 371 (Mo. 2003). In the instant case, Petitioner is not implying that any particular player endorses its game because all of the players names are used in the game. See C.B.C. Distrib., 443 F. Supp. 2d at 13

19 ; (R. at 4). Furthermore, the record includes no evidence suggesting that Petitioner has run advertisements or distributed merchandise that displays specific NFL players, thereby affiliating them with Petitioner. B. Under Tulania s Statute, Petitioner did not Use the Respondent Players Identities For Purposes of Trade. The Restatement s definition of for purposes of trade is intentionally narrow in order to foster free expression and the creation of original works. RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47, cmt. d (1995). Here, Petitioner has a right to develop exciting new fantasy sports games as long as it does not use professional athletes identities in its advertising, on its merchandise, or in any way that creates a substantial appropriation. See id. at cmts. a-d. Because Petitioner did not use the players identities in any of these ways, it did not use the players identities for purposes of trade. The Eighth Circuit has ruled that an identity is used for purposes of trade whenever the defendant intends its use to create a commercial benefit. C.B.C. Distrib., 505 F.3d at This rule misrepresents the relevant Restatement provisions. That court argued that fantasy baseball games were actionable, under the Restatement, because the Restatement says that a name is used for commercial advantage when it is used in connection with services rendered by the user and that the plaintiff need not show that prospective purchasers are likely to believe that he or she endorsed the product or service. Id. at 822. First, as previously mentioned, the Restatement carefully explicates the limited situations in which the right of publicity extends beyond advertising and merchandising, and fantasy sports games do not fall under this exception. See RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47, cmt. d (1995). In addition, the language quoted by the Eighth Circuit appears in the following context within the Restatement: 14

20 The use of a person s identity for the purpose of advertising goods or services marketed by the user is a use for purposes of trade under the rule stated in 46. The interest of a seller in attracting attention to a commercial solicitation is not sufficient to overcome the personal and economic interests protected by the right of publicity. Proof that prospective purchasers are likely to believe that the identified person endorses or sponsors the user s goods or services is not required for the imposition of liability. Thus, the unauthorized use of another s name in advertisements, commercials, or in other solicitations will ordinarily subject the user to liability for the infringement of the other s right of publicity. Id. at cmt. a (emphasis added). The language referred to by the Eighth Circuit applies only to the use of individuals identities in advertisements. It is does not suggest that every time a plaintiff s name is used to make a saleable product more desirable, an actionable violation of the right of publicity has occurred. Therefore, the emphasized language is not applicable to the instant case. C. Even if Petitioner Used the Respondent Players Identities For Purposes of Trade, Petitioner is Not Liable for a Breach of the Right of Publicity Because Its Use was in a Work of News and Entertainment. Newspapers and other periodicals are by no means philanthropic organizations, Zacchini, 433 U.S. at 575, so early right-of-publicity statutes exempted the dissemination of news from the meaning of for purposes of trade. Palmer, 232 A.2d at 79. Because, in part, fantasy board games containing actual athletes names and performance records were not seen as news, the creators of these games were found to be using players identities for trade purposes. Id.; Uhlaender, 316 F. Supp. at These board games are distinguishable from Petitioner s fantasy games because the former utilize an unchanging set of past statistics. (R. at 5.) In contrast, petitioner s products continu[ally] disseminate newsworthy statistical information. (R. at 5.) The statistical reports generated and distributed by Petitioner are constantly updated, and these reports compete for readers with similar scouting reports published in newspapers, magazines, and websites. Like its competitors, Petitioner is disseminating news in order to gain a commercial advantage, and, therefore, is not violating the players right of publicity. 15

21 Furthermore, to promote freedom of expression in entertainment and other creative works, Tulania passed a broader for purposes of trade exemption than that found in the Palmer and Uhlaender decisions. 3 RESTATEMENT (THIRD) OF UNFAIR COMPETITION 47, cmt. c (1995). Specifically, news, entertainment, and creative works are generally not actionable as violations of the right of publicity. Id. This exemption is necessary because it is difficult to distinguish between the use of players identities for news and for entertainment; fan magazines and websites, for instance, straddle the line between the two categories. This Court would be acting contrary to Tulania law if it ruled that ESPN The Magazine, for instance, is allowed to print publicly-available statistics and staff-generated scouting reports in order to sell more magazines, but Petitioner cannot publish the same information to help sales of its games, which are entertainment programs. (R. at 4.) Both of these merchants have the right to develop and distribute original products. III. PETITIONER S INTERNET FANTASY FOOTBALL GAME IS PROTECTED BY THE FIRST AMENDMENT. The First Amendment to the Constitution of the United States protects speech from infringement by the government. In order to receive First Amendment protection for its fantasy sports products, Petitioner must prove that enforcement of the right of publicity is state action, that the fantasy football game and related content constitute protected speech, and that Petitioner s interests under the First Amendment outweigh Respondent s interest in a right of publicity. Each of the elements is satisfied in this case, and this Court should hold that Petitioner is not liable because its content is protected by the First Amendment. A. Tulania s Protection of the Players Right of Publicity Constitutes State Action. 3 Although the publication of biographical data of a well-known figure does not per se constitute an invasion of privacy, the use of that same data for the purpose of capitalizing upon the name by using it in connection with a commercial project other than the dissemination of news or articles or biographies does. Palmer, 232 A.2d at 79. This passage is approvingly cited in Uhlaender, 316 F. Supp. at

22 The First Amendment only applies when the infringement of expression rights has been caused by state action within the meaning of the Fourteenth Amendment. Cohen v. Cowles Media Co., 501 U.S. 663, 668 (1991). The application of state rules of law in state courts in a manner alleged to restrict First Amendment freedoms constitutes state action. Id. Tulania state law provides for a right of publicity by adopting 46 of the Restatement (Third) of Unfair Competition (1995). (R. at 3.) In this case, the Respondent is asking the Court to hold that the right of publicity applies to Petitioner s internet fantasy football game, thereby applying a state rule of law in a manner that restricts Petitioner s First Amendment rights. (R. at 2-3.) If this Court holds that the fantasy football game infringes on the Respondent s right of publicity, then the state action requirement will be met. B. Petitioner s Internet Fantasy Football Games are Protected Speech under the First Amendment. The First Amendment protects freedom of expression, including speech that is intended to entertain. Cardtoons L.C. v. Major League Baseball Players Ass n, 95 F.3d 959, 969 (10th Cir. 1996). The First Amendment protects more than just political speech because a broadly defined freedom of the press assures the maintenance of our political system and an open society. Time, Inc. v. Hill, 385 U.S. 374, 389 (1967). A narrow construction of First Amendment freedoms would chill speech and create a self-censoring press. Id. at ; Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 580 (1977) (Powell, J., dissenting). Courts have held that this freedom of expression must be extended to games, including those that come in new and interactive forms. C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, 505 F.3d 818 (8th Cir. 2007); Interactive Digital Software Ass n v. St. Louis County, Mo., 329 F.3d 954, 957 (8th Cir. 2003); C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, 443 F. Supp. 2d 1077, 1094 (E.D. Mo. 2006). 17

23 In Time, Inc. v. Hill, 385 U.S. 374 (1967), the Supreme Court held that the First Amendment freedoms extend to more than merely political commentary. In that case James Hill sued Life Magazine, published by Time Inc., for suggesting that a play which portrayed events similar to those that happened to his family reflected his family s actual experience. The article s focus a play and a newsworthy incident was not core political speech. The Appellate Division of the Supreme Court of New York held that the article was not protected speech because it could not be characterized as a mere dissemination of news, nor even an effort to supply legitimate newsworthy information in which the public had, or might have a proper interest. Time, 385 U.S. at 379 (quoting Hill v. Hayes, 18 A.D.2d 485, 489 (1963)). The Supreme Court reversed the lower court, emphasizing that non-political speech must be protected, and that courts should not be in the business of drawing the line between valuable and unnecessary speech. Id. at 388. The First Amendment guarantees broad freedoms, especially when dealing with press and journalistic material. Id. In addition, the district court in C.B.C. Distribution & Marketing v. Major League Baseball, 443 F. Supp. 2d 1077, 1093 (E.D. Mo. 2006), held that public figures such as professional athletes were legitimate topics for the press, and that the names and playing records of baseball players represent historical facts. Celebrities, including famous athletes, are symbols of different aspects of our society, and become linked to ideas and values. Cardtoons, 95 F.3d at 972. Celebrities, then, are an important element of shared communicative resources of our cultural domain. Id. More recently, in Cardtoons L.C. v. Major League Baseball Players Ass n, F.3d 959 (10th Cir. 1996), the Tenth Circuit Court of Appeals held that parody trading cards are protected because the First Amendment protects expressive forms of entertainment. The line between the informing and the entertaining is too elusive for the protection of that basic right. Id. at

24 (quoting Winters v. New York, 333 U.S. 507, 510 (1948)). In Cardtoons, the court held that parody was an important form of communication, and so received full First Amendment protection. Id. at Expression does not, however, require a particularized message to be protected speech. Interactive Digital Software Ass n, 329 F.3d at 957 (8th Cir. 2003) (quoting Hurley v. Irish-American Gay, Lesbian & Bisexual Group, 515 U.S. 557 (1995)). The First Amendment protects speech that is intended to entertain, because entertainment in itself serves a public interest. Zacchini, 433 U.S. at 578; Time, 385 U.S. at 388. The present case is governed by the above rules. Petitioner produces original journalism as part of its game. It provides up-to-date information on each player, including statistics and records. (R. at 1-2.) The website also provides detailed analysis to help users create a strategic advantage. (R. at 2.) In order to enable users to make informed decisions, Petitioner employs journalists and scouts to scrutinize players tendencies to the extent that they are discernable through analysis of statistics and on-field performance. (R. at 2.) This commentary on players is protected speech, just as a similar article in a newspaper would be. The district court found that these analyses were unique and likely helped explain why Petitioner s fantasy football website is so popular. (R at 2.) The fact that this information is provided for entertainment purposes does not change its nature as protected speech; if it did, all commentary on professional sports would be unprotected because none of these analyses could be considered political. Every sports writer for every newspaper in the country would be forced to license the right to write a column criticizing players performances. A columnist might decide against writing that a player can t win the big one or doesn t come through in the clutch for fear of a lawsuit. Radio hosts would not be allowed to take calls from listeners who might criticize a player s long-term record. This would allow professional athletes to censor criticism of their performance through their 19

25 right to sell licenses for such analyses. The Supreme Court has repeatedly admonished that courts should not be involved in this sort of line-drawing. Time, 385 U.S. at (citing New York Times Co. v. Sullivan, 367 U.S. 254, 279 (1961); Winters v. People of State of New York, 333 U.S. 507, 510 (1948)); see also Zacchini, 433 U.S. at 578. The Tenth Circuit also warned that the last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them. Cardtoons, 95 F.3d at 973 (quoting White v. Samsung Elecs. America, Inc., 989 F.2d 1512, 1519 (9th Cir. 1993) (Kozinski, J., dissenting)). The content provided by Petitioner is in the form of published journalistic reports of newsworthy events, and as such is traditionally protected speech. Entertainment itself can be important news. Zacchini, 433 U.S. at 578. The fantasy football game itself is also protected by the First Amendment. The presentation of Petitioner s information as a game does not render it less worthy of First Amendment protection. Just as humorous speech must be protected by the First Amendment because it is a valuable form of expression and because courts are ill-equipped to draw lines determining which attempts are worthy, so must games be protected. The Eighth Circuit, in Interactive Digital Software Ass n v. St. Louis County, Mo., 329 F.3d 954 (8th Cir. 2003), held that a similarly novel form of expression was protected speech despite its interactive format and its presentation in a cutting-edge media. In Interactive Digital Software, the plaintiffs challenged an ordinance restricting the distribution of violent video games. The court held, in sweeping terms, that interactive digital games are protected First Amendment speech. There is no justification for disqualifying video games as speech simply because they are constructed to be interactive, and whether the court views violent video games as beneficial to society is irrelevant because the court felt obliged to recognize that they are as 20

26 much entitled to the protection of free speech as the best of literature. Id. at 957, 958 (quoting Winters v. New York, 333 U.S. at 510). The most successful literature is interactive, because it engages the audience to think or to feel. Id. at Thus, an interactive nature does not disqualify games or electronic media as speech protected by the First Amendment. In addition, the Supreme Court has held that the First Amendment protects many forms of expression other than newspapers and books, including handbills, yard signs, and nude dancing. See Cardtoons, 95 F.3d at 969 (citing City of Ladue v. Gilleo, 512 U.S. 43 (1994); Texas v. Johnson, 491 U.S. 397 (1989); Schad v. Mount Ephraim, 452 U.S. 61 (1981); Cohen v. California, 403 U.S. 15 (1971); Jamison v. Texas, 318 U.S. 413, 416 (1943); Lovell v. Griffin, 303 U.S. 444, (1938)). The facts that Petitioner s creation is an interactive game, and that this game is administered over the internet, does not limit the amount of protection it receives from the First Amendment. Petitioner s fantasy football game is an important form of expression. Petitioner s game is an invitation to the general public to sample the experience of owning and managing a professional football team. (R. at 1.) The participants have the opportunity to build and maintain a team and make real-world strategic decisions in doing so. (R. at 1.) The expressive value of the fantasy football game is that it allows participants to evaluate players strengths and weaknesses and make predictions as to which players will have future success. This is the same type of benefit that society gains from granting the press broad freedom of expression when discussing and analyzing entertainment. Time, 385 U.S A columnist in a newspaper is free to call for the local team to trade a quarterback, or to begin playing the backup running back more frequently. See Zacchini, 433 U.S. at 578; Time, 385 U.S Petitioner s fantasy football game is an even more important outlet for that expression, however, because it offers 21

27 that expressive opportunity to all people, rather than to the small portion of the population that make up the press. First Amendment protections are not for the benefit of the press so much as for the benefit of all of us. Time, 385 U.S. at 389. Therefore, Petitioner s fantasy football content must receive First Amendment protection. C. The Fantasy Football Games are not Commercial Speech. The fantasy football game is not commercial speech, and so should not be afforded the lesser constitutional protection that commercial speech receives. The Supreme Court has defined commercial speech as expression related solely to the economic interests of the speaker and its audience. Cent. Hudson Gas & Elec. Corp. v. Public Service Comm n of New York, 447 U.S. 557, 561 (1980). Lower courts have interpreted this to mean that speech is commercial speech when it merely advertises a product or service, Cardtoons, 95 F.3d at 970 (citing 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996)), or proposes a commercial transaction. Id. (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 761 (1976)). Commercial speech, unlike most speech, can be constitutionally regulated based on the content of the message because financial incentives make it unlikely that the speech will be suppressed by overregulation. Cent. Hudson, 447 U.S. at 564 n.6. Not all speech that is sold for a profit is commercial speech. Cardtoons, 95 F.3d at 970 (citing Lakewood v. Plain Dealer Publ g Co., 486 U.S. 750, 756 n.5 (1988)). Otherwise, the First Amendment would not protect any commercially-produced newspaper. Expression is not commercial speech if it does not advertise another unrelated product, and speech is not transformed into commercial speech merely because the product at issue is sold for profit. C.B.C. Distrib., 443 F. Supp. 2d at 1094 (quoting Virginia State Bd. of Pharmacy, 425 U.S. at 761). C.B.C. Distribution presented a factual situation in which the only material difference to 22

28 the instant case was that it involved a fantasy baseball game. 4 The district court in C.B.C. applied the Cardtoons rule and held that the game deserved the full force of First Amendment protection because it was not commercial speech. 443 F. Supp. 2d at The Eighth Circuit affirmed the decision, holding that the game was protected by the First Amendment, without discussing the commercial speech issue. C.B.C. Distrib., 505 F.3d 818. Since these games do not advertise other services and do not propose an economic transfer of any kind, they are not commercial speech. C.B.C. Distrib., 443 F. Supp. 2d at Merely invoking a celebrity athlete as part of the expressive product does not render a form of expression commercial speech. See Cardtoons, 95 F.3d at ; C.B.C. Distrib., 443 F. Supp. 2d at Petitioner s game, like the products in Cardtoons and C.B.C. Distribution, does not use players names and playing records for the purpose of advertising a product or services. Rather, the names and statistics are historical facts incorporated into the expressive speech. IV. PETITIONER S FIRST AMENDMENT INTERESTS OUTWEIGH ANY COMPETING INTERESTS CREATED BY THE PLAYERS RIGHT OF PUBLICITY. There is an inherent tension between the right of publicity and the right of freedom of expression. C.B.C. Distrib., 443 F. Supp. 2d at 1095 (quoting ETW Corp. v. Jireh Publ g, Inc., 332 F.3d 915, 929 (6th Cir. 2003)). The Supreme Court s holding in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), is therefore not relevant to the present case. In Cohen, the Court held that rules of general applicability do not violate the First Amendment whenever they have an incidental detrimental effect on journalism. 501 U.S. at The right of publicity, however, 4 The other factual differences were minor. An arm of the league, MLB Advanced Media, was a plaintiff in C.B.C. Distribution in addition to the players association. The court also analyzed the right to publicity under common law rather than statute. 23

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