In the Supreme Court of the United States

QUESTIONS PRESENTED I. Whether a fantasy football game vendor s provision of information regarding the names and publicly available performance statistics of professional football players constitutes an appropriation of the commercial value of those players identities, and if so whether the provision of such information infringes upon their right of publicity when the use is strictly limited to communicating information used for entertainment purposes? II. Whether the Court of Appeals correctly held that Virtual Football Owner, Inc. s internet fantasy football games are not protected by the First Amendment? ii

LIST OF PARTIES The National Football League Players Association ( NFLPA ) was the plaintiffappellant below. The NFLPA is the respondent in this action. Virtual Football Owner, Inc. ( VFO ) was the defendant-appellee below. VFO is the petitioner in this action. iii

TABLE OF CONTENTS QUESTIONS PRESENTED... ii LIST OF PARTIES... iii TABLE OF CONTENTS... iv OPINION BELOW... 1 JURISDICTION... 2 CONSTITUTIONAL PROVISION... 2 STATEMENT... 2 I. Summary of the Facts... 2 II. Procedural History... 4 III. Standard of Review... 4 SUMMARY OF THE ARGUMENT... 4 ARGUMENT... 7 I. VFO S PROVISION OF INFORMATION REGARDING PLAYER NAMES AND PUBLICLY AVAILABLE STATISTICS DOES NOT VIOLATE RESPONDENT S RIGHT OF PUBLICITY... 7 A. VFO s use of player information is not for purposes of trade, but rather for communicating information and for entertainment purposes... 8 B. VFO s usage of player statistics and scouting reports based on information readily available to the general public does not constitute an appropriation of the commercial value of respondent s identity... 14 II. THE COURT OF APPEALS INCORRECTLY HELD THAT VFO S EXPRESSION IS NOT PROTECTED BY THE FIRST AMENDMENT 16 A. Petitioner s Expression is Protected by the First Amendment... 16 B. Petitioner s Expression is not Commercial Speech Because it is Not Solely Related to Economic Interests... 21 C. Petitioner s First Amendment Right of Expression Outweighs Respondent s Right of Publicity... 23 D. Policy Considerations Further Support Petitioner s First Amendment Protection... 26 iv

CONCLUSION... 27 v

Cases: TABLE OF AUTHORITIES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 4 Celotex Corp. v. Catrett, 477 U.S. 317 (1986).. 4 First Amendment. Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm., 447 U.S. 557 (1980)..21 Time, Inc. v. Hill, 385 U.S. 374 (1967)..19 Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976). 22 Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (U.S. 1977) 12, 14, 16, 23 Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) 9, 14 Cardtoons, L.C. v. Major League Baseball Players Ass n, 95 F.3d 959 (10th Cir. 1996)...Passim C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P.,505 F.3d 818 (8th Cir. 2007) Passim Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2nd Cir. 1953)... 8 Interactive Digital Software Ass n v. St. Louis County, Mo., 329 F.3d 954 (8 th Cir. 2003)...17, 21 White v. Samsung Elecs. America, Inc., 971 F.2d 1395 (9th Cir. 1992)..8, 10 Ali v. Playgirl, Inc., 447 F. Supp. 723 (S.D.N.Y. 1978).10, 14 C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077 (E.D. Mo. 2005) Passim Uhlaender v. Henricksen, 316 F. Supp. 1277 (D. Minn. 1970).. 12 Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) Passim Winter v. D.C. Comics, 69 P.3d 473 (Cal. 2003) 16, 20 Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001).Passim Palmer v. Schonhorn Enters., Inc., 232 A.2d 457 (N.J. Super. Ch. Div. 1967) 12 Constitution: vi

U.S. Constitution, amend. I 2, Passim Statutes: 28 U.S.C. 1254 (1). 2 Restatement (Third) of Unfair Competition 46-47 (1995).. Passim vii

In the Supreme Court of the United States NO. 07-123 VIRTUAL FOOTBALL OWNER, INC., Petitioner, v. NATIONAL FOOTBALL LEAGUE PLAYERS ASSOCIATION, Respondent. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT BRIEF FOR THE PETITIONER OPINION BELOW The opinion of the United States District Court for the District of Tulania is unreported and appears in the record. National Football League Players Ass n v. Virtual Football Owner, Inc. No. 05-CV-0429 (D. Tul. Filed May 20, 2005) (R. 1-9). The opinion of the United States Court of Appeals for the Fourteenth Circuit is unreported and appears in the record. National Football League Players Ass n v. Virtual Football Owner, Inc., No. 07-020580 (14th Cir. 2007) (R. 10-17). 1

JURISDICTION The judgment of the United States District Court for the District of Tulania was entered May 20, 2005, under docket number 05-0429. The judgment of the United States Court of Appeals for the Fourteenth Circuit was entered under docket number 07-020580. This court granted Virtual Football Online, Inc. s Petition for a Writ of Certiorari in this case with docket number 07-123. This Court has jurisdiction under 28 U.S.C. 1254(1). CONSTITUTIONAL PROVISION The First Amendment to the United States Constitution provides, in relevant part: Congress shall make no law abridging the freedom of speech, or of the press. U.S. Const. amend. I. STATEMENT I. Summary of the Facts The immense popularity of fantasy sports gaming in the United States has given rise to a multimillion dollar industry populated by corporations such as VFO which seek to generate revenue through the marketing, distribution, and sale of fantasy sports games. C.B.C. Distrib. & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 443 F. Supp. 2d 1077, 1080 (E.D. Mo. 2006) ( C.B.C. Distrib. I ). Fantasy game participants seek to simulate the experience of owning a professional sports team by drafting, purchasing, and playing players in games against other participants where success is dependent on the actual performances of the selected players. (See R. at 1.) Petitioner Virtual Football Owner, Inc., provides online fantasy sports products via its internet website - www.virtualfootballowner.com. (R. at 1.) Though it is common for fantasy 2

game vendors to provide customers with up-to-date information relating to player performance statistics or injuries, see C.B.C. Distrib. I, 443 F. Supp. 2d at 1080, VFO s products and games are distinguished from the competition by the depth of the statistical analysis made available to participants, (see R. at 2). Participants in VFO s most popular game Real Football Owner ( RFO ), for example, are granted access to highly detailed scouting reports concerning performance statistics of National Football League players, identified by name on the website. (Id. at 1.) The information VFO provides is drawn from media box scores, as found in newspapers or online sports news providers. (Id. at 1-2). Petitioner also hires journalists to write commentary relevant to the fantasy owners, such as stories relating to the latest injury reports. (Id. at 2). VFO s player scouting reports, based on objective statistical data available to the general public, are unique because the depth of the statistical analysis is unlike anything else available in the market. (Id.) From April 1996 through March 2005, VFO and the respondent were parties to a license agreement stating that respondent had the right to negotiate agreements regarding, and to grant rights in and to, Player s Rights, defined as names, likenesses, pictures, playing records, onfield personality traits, and/or biographical data of each player. (R. at 2.) The agreement permitted petitioner to make use of the Player s Rights in all of its games for the term of the license. (Id.) Upon expiration of the agreement in March 2005, the parties unsuccessfully negotiated for an extension of the license. (Id.) Petitioner continued to offer the same content on its website despite the expiration of the license, and on May 20, 2005, the respondent sued petitioner for damages and an injunction preventing petitioner from using any of the information covered by the Player s Rights. (Id.) 3

II. Procedural History The United States District Court for the District of Tulania (J. Dicta) granted petitioner s Motion for Summary Judgment, holding that petitioner s use did not violate respondent s right of publicity and that petitioner s use was expression protected by the First Amendment. (R. at 9.) The United States Court of Appeals for the Fourteenth Circuit (J. Dictum) reversed and remanded the case, holding that petitioner s use violated respondent s right of publicity and was not expression protected by the First Amendment. (R. at 17.) This Court granted a writ of certiorari. (R. at 18.) III. Standard of Review It is appropriate for this Court to review the Fourteenth Circuit s reversal of the District of Tulania s grant of VFO s Motion for Summary Judgment de novo. (R. at 19.) Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. C.B.C. Distrib. I, 443 F. Supp. 2d at 1083 (citing Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). A genuine issue of material fact exists if a court, viewing the facts in the light most favorable to the nonmoving party, id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), finds that the evidence is such that a reasonable jury could return a verdict for the nonmoving party, id. (citing Anderson, 477 U.S. at 248). A party motioning for summary judgment bears the burden of demonstrating that there is not sufficient evidence to support the opposing party s case. Id. (citing Celotex, 477 U.S. at 325). SUMMARY OF THE ARGUMENT 4

In the state of Tulania, a defendant infringes upon a celebrity plaintiff s right of publicity when the defendant appropriates the commercial value of the celebrity s identity without his or her consent for the purpose commercial advantage or trade and such damage results in damages to the plaintiff celebrity. If the celebrity bringing the action is unable to establish the existence of one of any the required elements, the right of publicity claim must fail. Here, it is clear that VFO does not violate respondent s right of publicity because its use of player names and statistics is for the limited purpose of providing participants in its games with performance related news to assist them in playing a football-owner simulation game for entertainment purposes. VFO markets, distributes, and sells online fantasy sports games to consumers desiring to simulate the experience of operating a professional football franchise. Participants in VFO s games take on the role of a franchise owner and manage their team rosters, comprised of actual players, in games against other participants. To enhance the entertainment experience afforded its participants, VFO provides them with in-depth statistical reports, generated from a variety of publicly available news sources, regarding the actual on-field performances of National Football League players. VFO does not make use of player names in any other way. The use of player names and statistics to provide fantasy game participants with performance information relevant to the games they participate in for entertainment is a common practice in the multi-million dollar fantasy sports gaming industry (VFO does pride itself, however, on making better use of the publicly available information than its competitors). Given that all market participants in the fantasy sports gaming industry use player names and statistics this way, it thus clear that VFO s use is not for purposes of trade as it does not give rise to the perception of player endorsement, nor does it provide VFO with a commercial advantage. 5

Respondents Right of publicity claim must also fail because VFO s limited use of player names and statistics is so limited that it does not implicate the public persona of those players, and thus does not constitute an appropriation of the commercial value of their identities. Regardless of how this Court rules on the right of publicity issues, this Court should reverse the Fourteenth Circuit and hold that the First Amendment protections of petitioner s expression trump the right of publicity claim. The First Amendment protects the dissemination of factual, historical data through non-traditional, interactive speech. That petitioner s expression is for-profit does not remove First Amendment protection. Petitioner s use of player names in this expression is incidental to the use of publicly available statistics, thus the Fourteenth Circuit applied the incorrect test in determine whether petitioner s speech was sufficiently expressive to receive First Amendment protection. Moreover, petitioner s expression is not commercial speech, because it is not solely to the economic interests of the speaker and listener. Petitioner s does not use players statistics and names to advertise or otherwise propose a commercial transaction. Because First Amendment protection applies, this Court must balance the First Amendment concerns against the interests protected by the right of publicity. In this case, the First Amendment protections outweigh the economic interests the right of publicity serves to protect. The right of publicity protects the property rights celebrities hold in their identities. Specifically, it protects the dilution of the value of those identities and prevents unjust enrichment from unapproved use. In this case, however, respondent s right of publicity is not diluted, as the information as all publicly available historical data. Also, because it is publicly available, petitioner is not unjustly enriched; consumers purchase petitioner s service because it aggregates this available data in one place, and not for the data itself. 6

Moreover, public policy concerns support petitioner s First Amendment rights. Should the Court hold that the right of publicity trumps the First Amendment, expression that disseminates publicly available historical data will be chilled. Petitioner s expression is akin to that in games such as Jeopardy! and Trivial Pursuit; the expression presents publicly available, factual information in an aggregated service for profit. The use of players names is incidental to the use of players statistics, which are historical facts. If the right of publicity trumps the First Amendment in this case, then all non-news use of such information would be implicated. ARGUMENT I. VFO S PROVISION OF INFORMATION REGARDING PLAYER NAMES AND PUBLICLY AVAILABLE STATISTICS DOES NOT VIOLATE RESPONDENT S RIGHT OF PUBLICITY VFO and its competitors cater to the segment of the fantasy sports gaming market willing to pay for up-to-date player information compiled from box scores and a variety of other news sources generally available to the public. (See R. at 1-2); see also C.B.C. Distrib. I, 443 F. Supp. 2d at 1080. The products and games marketed by VFO are successful because they provide participants with access to highly detailed reports and in-depth statistical analysis unlike anything else currently on the market. (See R. at 2.) While these products and games clearly reference individual player names and statistics, (see R. at 1-2), the Fourteenth Circuit nonetheless erred in holding that such use infringed upon respondent s right of publicity, (R. at 15), because VFO s use of the names and statistical related information is for entertainment purposes only, and because VFO s use of player performance information available to the general public does not constitute an appropriation of the commercial value of those players identities. 7

The right of publicity 1 is creature of state and common law, C.B.C. Distrib. I, 443 F. Supp. 2d at 1084, that acknowledges the commercial value attached to a celebrity s identity and affords celebrities the ability to protect the commercial value of their identities from being damaged through unauthorized exploitation, White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1398 (9th Cir. 1992). According to the 46 Restatement (Third) of Unfair Competition (1995) ( Restatement ), adopted by the state of Tulania to govern the right of publicity, (R. at 13), a party using a celebrity s identity violates that celebrities right of publicity if: (1) the commercial value of the celebrity s identity is appropriated for purposes of trade; (2) the celebrity has not consented to the use of his or her identity; and (3) the appropriation results in damages to the plaintiff, see Restatement (Third) of Unfair Competition 46 (1995). In the present case, it is clear that the District Court s grant of summary judgment in favor of VFO was appropriate because VFO s use of player names and statistics was not for purposes of trade, and because the use did not constitute an appropriation of the commercial value of the players identities. 2 A. VFO s use of player information is not for purposes of trade, but rather for communicating information and for entertainment purposes VFO provides participants in its games with lists of player names and statistical reports to save those participants the time, energy, and aggravation required to cull the information together from box scores and other publicly available news sources. (See R. at 1.) This service enhances the entertainment experience and increases the level of competition by making it more 1 The right to publicity was first recognized in Haelan Laboraties, Inc. v. Topps Chewing Gum Inc., 202 F.2d 866, 868 (2d Cir. 1953). Though the right is derived from the right of privacy, the Supreme Court has asserted that the right of publicity has virtually nothing in common with the other three distinct branches of the law of privacy except that they each represent an interference with an individual s right to be let alone. Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562, 571 n.7 (1977). 2 Consent is not at issue in the present case as VFO continued to offer RFO, with the same content, following the NFLPA s filing of this suit on May 20, 2005. See Restatement (Third) of Unfair Competition 46 cmt. (f) (indicating that consent is terminated when the user knows or has reason to know that the other is no longer willing to permit the particular use ). 8

feasible for participants in VFO s games to stay abreast of the latest sports news and make wellinformed decisions in operating their teams. Respondent s right of publicity claim must fail because the use of player names and statistics in this context is incidental and not for purposes of trade, but rather for communicating information used for entertainment purposes in connection with a pro-football owner simulation game. Section 47 of the Restatement asserts that an individual s identity is used for purposes of trade (or commercial advantage) if: (1) it is used in advertising the user s goods or services; (2) if it is placed on merchandise marketed by the user; or (3) is used in connection with services rendered by the user. Restatement (Third) of Unfair Competition 47 (1995). Section 47 also limits the scope of protection the right of publicity secures for celebrities by providing that the use of an individual s identity is generally not actionable if the identity is used in news reporting, commentary, entertainment, or in advertising that is incidental to such uses. Id. Consistent with the Restatement, courts have been apt to find that a celebrity s identity has been used purposes of trade when the use occurs in connection with advertisements or commercials. See Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407, 409 (9th Cir. 1996) (involving the unauthorized use of professional basketball player s former name in a television commercial); White, 971 F.2d at 1395 (involving the depiction of a robot resembling a celebrity plaintiff in a television commercial). Courts have also found unauthorized uses of a celebrity s identity to be for purposes of commercial advantage when the identity is used to attract consumer attention to a product or to convey the impression that the celebrity is somehow associated with the product. In Doe v. TCI Cablevision, the Supreme Court of Missouri considered whether a retired professional hockey player s right of publicity was infringed by the respondent s inclusion of a character with the player s same name in a comic book. 110 S.W.3d 363, 365 9

(Mo. 2003). The court s holding that the respondents had used the player s identity for purposes of obtaining a commercial advantage was based upon the court s determination that the respondents used the name with the intent of creating the impression that the player was in associated with the comic book in some way. Id. at 371-72. Along similar lines, in Ali v. Playgirl, Inc., the Southern District of New York asserted that a magazine s use of a dramatized sketch of boxer Muhammad Ali was for purposes of trade because the portrait was clearly included in the magazine solely for [the] purpose[] of attract[ing] attention. 447 F. Supp. 723, 727 (S.D.N.Y. 1978). The conduct at issue in the present case is clearly distinguished from cases involving the unauthorized inclusion of celebrity names and likenesses in commercial advertisements, see Abdul-Jabbar, 85 F.3d at 409; White, 971 F.2d at 1395, and from the unauthorized employment of a celebrity s identity in print materials to attract attention, see Ali, 447 F. Supp. at 727, or imply that the celebrity endorses the product, see TCI, 110 S.W.3d at 371-72, because VFO s usage of player names and statistics is completely unrelated to the marketing and sale of its products. VFO s practice of providing participants with information referencing player names and statistics neither implies that the players endorse VFO s products, nor helps VFO to obtain a commercial advantage over its competitors because the practice at issue is commonplace within the multimillion fantasy sports gaming industry. (See R. at 4 (asserting that names and statistics are an integral part of every fantasy sports game)); see generally C.B.C. Distrib. I, 443 F. Supp. 2d at 1080 (describing an online fantasy sports vendor s practice of providing customers with upto-date player information and statistics). VFO s utilization of player names and statistics does not infringe upon respondent s right of publicity because the use is for reporting news and supporting games for entertainment 10

purposes, both of which are activities embraced by the broadly construed limitations to the right of publicity articulated in 47 of the Restatement. See Restatement (Third) of Unfair Competition 47, cmt. c (stating that the scope of activities embraced within this limitation on the right of publicity has been broadly construed ). In C.B.C. Distribution I, the dispute before the Eastern District of Missouri was extremely similar to the present case, as a producer of fantasy baseball games sought declaratory judgment that had a right to use Major League Baseball ( MLB ) player names and performance statistics in its games without the consent of MLB or the MLB Players Association. 443 F. Supp. at 1081. The business practices and products of the vendor in C.B.C. Distribution I were similar to those employed by VFO, as the vendor provided its customers with up-to-date player reports generated from publicly available information. Id. at 1080. The court found that the commercial advantage element of the right of publicity claim was not satisfied because: (1) there was nothing about the vendor s fantasy baseball games that suggested MLB or the MLB Players Association was associated with the product, or that an individual player endorsed the product; and (2) the use of names and statistics of MLB players in the vendor s games was not meant to attract customers away from other fantasy game providers, each of whom necessarily make use of the same information in their products. Id. at 1086. The Eighth Circuit came to a different conclusion on appeal, finding that that the commercial advantage element of the right of publicity was satisfied based upon the reasoning that that a name is used for commercial advantage when it is used in connection with services rendered by the user. C.B.C. Distrib. & Mktg. v. Major League Baseball Advanced Media, 505 11

F.3d 818, 821 (8th Cir. 2007) ( C.B.C. Distrib. II ). The Fourteenth Circuit 3 adopted an even more expansive view of the scope of the right, declaring that [a]ny incorporation of a person s identity into a commercial product violates the person s right of publicity if done without their consent. (R. at 15.) The Fourteenth Circuit s ruling below and the Eighth Circuit s decision in C.B.C. Distribution II were erroneous because they rest on the premise that the fact that a celebrity s name is used in connection with a commercial product violates the celebrity s right of publicity if no consent has been given, regardless of the purpose for which the name appears, (see R. at 15); C.B.C. Distrib. II, 505 F.3d at 822-23, and are thus not consistent with the Supreme Court s understanding of the rationale underlying the right to publicity as set forth in Zacchini. In Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court asserted that the right of publicity is based upon the straight-forward rationale of preventing unjust enrichment by the theft of good will, because no social purpose is served by having the defendant get free some aspect of the plaintiff that would have market value and for which he would normally pay. 433 U.S. 562, 576 (U.S. 1977). The Supreme Court further explained that the economic philosophy 3 In support of its conclusion that the VFO uses the identities of professional athletes as its product, the Fourteenth Circuit relies heavily on a pair of early right to privacy/publicity cases - Palmer v. Schonhorn Enterprises, Inc., 232 A.2d 458 (N.J. Super. Ct. Ch. Div. 1967), and Uhlander v. Henricksen, 316 F. Supp. 1277 (D.C. Minn. 1970). Palmer, which was handed down in 1967, involved a right to privacy claim brought by a group of professional golfers against a corporation which used marketed a board game used the names, likenesses, biographical profiles, and career accomplishments of twenty-three professional golfers without authorization. 232 A.2d 459. The Superior Court of New Jersey found that the use of such information was an infringement upon the golfers privacy rights, indicating that while the publication of biographical data of a celebrity does not per se constitute an invasion of privacy, the right to privacy is implicated when the information is used in any commercial product not associated with the dissemination of news or articles. Id. at 462. In Uhlander, handed down shortly after Palmer, major league baseball players brought a similarly based claim against a board game manufacturer for the unauthorized use of the players names and accomplishments. 316 F. Supp. at 1278. The District of Minnesota rejected the defendant manufacturer s contention that the appearance of the names and statistical information in the public domain made the use permissible, and applied similar reasoning to that employed by the court in Palmer to find that the manufacturer s use of player names and statistics was for commercial use. Id. at 1283. The Fourteenth Circuit s heavy reliance on Palmer and Uhlander was misplaced because those cases were roughly forty years ago, when recognition of the right of privacy and its derivative right of publicity was a relatively new concept, see Palmer, 443 F. Supp. 2d 1288, and long before the emergence of the online sports fantasy gaming industry. As a result the relevance of those decisions to this case is minimal. 12

for this rationale is similar to that which underlies the Court s protection of patent and copyright laws protection of the fruits of an individual s labors provides an economic incentive for him to make the investment required to produce a performance of interest to the public. Id. Consistent with this rationale, the Eastern District of Missouri asserted that in determining whether the appearance of player names in fantasy sports game is in violation of the right of publicity, how players names are used is significant rather than the mere fact that they are used. C.B.C. Distrib. I, 443 F. Supp. 2d at 1089 (citing TCI, 110 S.W.3d at 369). VFO usage of player names and statistical data is for the limited purpose of providing participants in its professional football owner simulation games with relevant information to assist them in playing the games for entertainment purposes. Although VFO s products are distinguished from other fantasy sports games available in the market by the depth of the statistical analysis made exclusively available to its participants, 4 (see R. at 1-2), the fact of VFO s usage of names and statistical data does not give rise to a commercial advantage or implication of player endorsement because the practice of providing customers with player names and statistical information is commonplace in the fantasy sports gaming industry, see also C.B.C. Distrib. I, 443 F. Supp. 2d at 1080. This Court should thus find that respondent s right of publicity claim must fail because VFO s uses player names and data provide news for entertainment gaming purposes, not for purposes of trade. 4 This distinction is important because the comments to 47 of the Restatement are clear that the fact that a user is successful in obtaining a competitive commercial advantage from an otherwise permitted use of another s identity does not render the appropriation actionable. Restatement (Third) of Unfair Competition 47, cmt. c. VFO s commercial advantage here does not arise from the fact that it takes advantage of a permitted use of player identities (for entertainment purposes), but from the fact that it does a better of job of taking advantage of the permitted use than does the competition. 13

B. VFO s usage of player statistics and scouting reports based on information readily available to the general public does not constitute an appropriation of the commercial value of respondent s identity Even if this Court were to find that VFO s provision of player performance news to its customers to assist them in playing games for entertainment purposes, summary judgment in favor of VFO is still appropriate because VFO s use does not constitute and appropriation of the commercial value of the players identities. There is no dispute that VFO provides its customers with informational materials referencing NFL player names without player consent. (See R. at 2.) Respondent s right of publicity claim is not colorable, however, unless the use implicates the public reputation or persona of players, Ali, 447 F. Supp. at 728. The comments to 46 of the Restatement set forth a series of factors for courts to consider in determining whether the unauthorized use of a public figure s name constitutes an appropriation of the commercial value of that person s identity, including the nature and extent of the identifying characteristics used by the defendant, the defendant s intent, 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. Courts have made it clear that a celebrity s name is used as a symbol of his or her identity for the purposes of a right of publicity claim when the name is used in conjunction with that celebrity s likeness. See Abdul-Jabbar, 85 F.3d at 415-16. The use of a celebrity s name has also been found to implicate the celebrity s persona in situations where the name is not used in conjunction with the celebrity s likeness. In TCI, the Supreme Court of Missouri applied the factors set forth in the comments to 46 of the Restatement and found that a professional hockey player s name was used as a symbol of his identity when it was used to reference a character in 14

the defendant s comic book. TCI, 110 S.W.3d at 370. Although the hockey player did not share a resemblance with the comic book character of his same name, the court was swayed by the existence of a strong correlation between the character and the player (both were considered tough guys ) and by evidence that young fans had approached the player under the mistaken belief that he was associated with the comic. Id. The Eastern District of Missouri s application of the factors in C.B.C. Distribution I yielded a different result, however, as the court found that the defendant fantasy baseball game vendor s use of player names in conjunction with their playing records did not constitute an appropriation of the plaintiff baseball players identities. C.B.C. Distrib. I, 443 F. Supp. 2d at 1089. The court indicated that because the vendor s use of player names and statistics involved historical facts about the players, but not their character, personality, reputation, or physical appearance, that the use did not involve the persona or identity of any player. Id. Despite the significant factual similarities between the circumstances of the case at bar and those present in C.B.C. Distribution I the court below rebuked the District of Tulania s reliance upon the Eastern District of Missouri decision and concluded that VFO s use did constitute an appropriation because the audience clearly understood the connection between the fantasy player names and the NFL players of the same name. (R. at 14.) The Fourteenth Circuit s reasoning with respect to his element of the right of publicity claim is flawed because, as evidenced by TCI, the mere use of a celebrity s name alone is not sufficient to implicate the commercial persona or reputation that the right is meant to protect. See TCI, 110 S.W.3d at 370. As asserted by the Eastern District of Missouri in C.B.C. Distribution I, the mere usage of player names in conjunction with performance statistics in fantasy sports games, such as those marketed 15

by VFO, is not sufficient to be considered an appropriation of the celebrity s persona or commercial identity for purposes of a right of publicity claim. 443 F. Supp. 2d at 1089. This Court should apply reasoning similar to that utilized by the Easter District of Missouri in C.B.C. Distribution I, and rule that VFO s use of player names and statistics does not constitute an appropriation of those players commercial identities. II. THE COURT OF APPEALS INCORRECTLY HELD THAT VFO S EXPRESSION IS NOT PROTECTED BY THE FIRST AMENDMENT If the Court holds that petitioner s use of player names and statistics violates the right of publicity, the First Amendment nonetheless trumps the right of publicity claim. In Zacchini, the Court held that state law rights of publicity must be balanced against the First Amendment rights of freedom of speech and press. In balancing respondent s right of publicity claim against the First Amendment guarantees of freedom of speech and press, the Court of Appeals for the Fourteenth Circuit held that the petitioner s use of the players names and statistics and character traits are not protected by the First Amendment. 433 U.S. at 567. Because the Fourteenth Circuit gave too little weight to the First Amendment considerations in this case, the Court should reverse the Fourteenth Circuit s judgment. A. Petitioner s Expression is Protected by the First Amendment The Fourteenth Circuit erred in holding that the expression at issue in this case is not protected by the First Amendment. Because the court below focused solely on petitioner s use of players names, while ignoring that the use of player names is incidental to the dissemination of statistical information, the court applied the tests of Winter v. D.C. Comics, 69 P.3d 473 (Cal. 2003) and Doe v. TCI Cablevision, 110 S.W.3d 363, and held that petitioner s use of players 16

identities added no creative spark to transform their product into expressive work. (R. at 16). Dissemination of historical facts and data, however, is in itself expression. Because nontraditional, interactive presentation of publicly available historical data for entertainment purposes is not exempted from First Amendment protection, the Court should hold that the right of publicity claim must be balanced against First Amendment considerations. i. The First Amendment Applies to Non-traditional Forms of Speech Speech which does not use a traditional medium of expression does not receive less protection that more traditional means of speech. C.B.C. Distrib. I, 443 F. Supp. 2d at 1092 (citing Cardtoons, L.C. v. Major League Baseball Players Ass n, 95 F.3d 959, 969 (10th Cir. 1996)). As the District Court noted in C.B.C Distribution I, the First Amendment has been applied to flag burning, nude dancing, and wearing a jacket with obscenities. Id. (citations omitted). Moreover, Courts have protected expression appearing in video games, on sports trading cards, and on sports websites. See generally Interactive Digital Software Ass n v. St. Louis County, Mo., 329 F.3d 954 (8th Cir. 2003) (holding that the pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games is speech entitled to first amendment protection); Cardtoons, 95 F.3d 959 (parody baseball trading cards); Gionfriddo v. Major League Baseball, 114 Cal. Rptr. 2d 307 (Cal. Ct. App. 2001) (baseball player names and statistics). Neither novel avenues nor mediums of expression preclude First Amendment protection. Such a jurisprudential posture is the appropriate one; the expansion of methods for the exchange of information in modern culture requires that First Amendment protection be extended to new methods of expression unforeseen even ten years ago. 17

ii. The First Amendment Protects the Dissemination of Historical Factual Data The Fourteenth Circuit erred in Courts have found that the First Amendment protects expression when the content is factual data and historical facts. See C.B.C. Distribution & Mktg., Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007), Gionfriddo, 114 Cal. Rptr. 2d 307. The C.B.C. Distribution II and Gionfriddo cases are particularly informative, as they address the particular content at issue in this case. In C.B.C. Distribution II, concerning the use of baseball player names and statistics in a for-profit online fantasy league, the Eight Circuit held that the [factual data and historical facts] used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone. C.B.C. Distrib. II, 505 F.3d at 824. In Gionfriddo, the court concluded that the precise information conveyed... consist[ed] of factual data concerning [baseball] players [and] their performance statistics and that, as such the First Amendment was applicable. 114 Cal. Rptr. 2d at 314. The Gionfriddo court went on to state that the information disseminated was mere bits of baseball's history, and further held that the First Amendment protects recitations of [baseball] players' accomplishments. Id. The freedom of the press is constitutionally guaranteed, and the publication of daily news is an acceptable and necessary function in the life of the community. Id. (citations omitted). Certainly, the accomplishments... of those who have achieved a marked reputation or notoriety by appearing before the public, such as... professional athletes... may legitimately be mentioned and discussed in print or on radio and television. Id. (citation omitted) (emphasis in original). See also Cardtoons, 95 F.3d at 968 (holding that because the defendant's parody baseball cards disseminated historical facts and 18

data, the trading cards were entitled to full First Amendment protection). The petitioner s expression in the instant matter is the very same dissemination of historical data and factual information addressed by the C.B.C. Distribution II and Gionfriddo courts. VFO compiles publicly available, historical facts and aggregates them in an online service. VFO s expression is akin to a news service: gathering historical, factual information available to the public and putting this information in a single place where the interested public can more easily access it. As addressed below, that petitioner profits from this service is of no moment to First Amendment consideration. As the New York Times charges for its aggregation services, so too may petitioner. iii. Petitioner s Profiting from its Dissemination of Historical, Factual Data Does Not Remove First Amendment Protection Petitioner s making a profit does not preclude its receiving First Amendment protection. As the Court held in Time Inc. v. Hill, 385 U.S. 374, 396-97 (1967) [t]hat 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. In this case, VFO reaps commercial gain from its aggregation and dissemination of publicly available factual data. The paradigmatic case of such dissemination of data is the traditional for-profit newspaper, such as the New York Times. Because of traditional and functional role of the media is accorded particular, and strict, protection by the First Amendment, petitioner concedes that the Times is not an entirely proper analog to its service. An accurate analog, however, is the celebrity news magazine, such as US Weekly or Star Magazine. These publications, both in their print and internet forms, likewise provide access, for profit, to a compilation of publicly available historical facts and data. Unlike the Times, these publications 19

do not serve to educate the public to matters of fundamental concern to the proper functioning of our system of government (elections, geopolitical events, economic developments, and the like). Like petitioner, these services disseminate information for the purposes of entertainment, and gain commercial profit because of the public s interest in the data. Nonetheless, these publications are accorded First Amendment protection because they engage in the marketplace of ideas and information. iv. The First Amendment Protects Expression that Entertains That petitioner s expression is entertainment likewise does not remove First Amendment protection. As the Court has held, [t]here is no doubt that entertainment, as well as news, enjoys First Amendment protection. Zacchini, 433 U.S. at 578. A significant justification for protecting entertaining speech is the difficulty in distinguishing between what is news and what is entertainment. As the Tenth Circuit, quoting this Court has held, [s]peech that entertains, like speech that informs, is protected by the First Amendment because [t]he line between the informing and the entertaining is too elusive for the protection of that basic right. Cardtoons, 95 F.3d at 969 (quoting Winters v. New York, 333 U.S. 507, 510 (1948). Moreover, as the Zacchini Court stated, entertainment itself can be important news. 433 U.S. at 578. Though petitioner s service plays both an informational and entertainment role, the fact that VFO s online league entertains does not remove First Amendment protection. The First Amendment protects expression that exists solely to entertain, such as certain movies or magazines. Like purely informative news media, entertaining expression adds to the exchange of ideas and information protected by the First Amendment. Moreover, the distinction between disseminating data for information purposes and entertainment purposes is a difficult one to draw; even the most traditional media, such as the Times or The Economist, entertains as well as 20

informs, and even the most novel media, such as a video game or internet gossip blog, informs as well as entertains. v. The First Amendment Protects Interactive Expression That petitioner s expression involves interaction between the listener and the speaker likewise does not preclude First Amendment protection. Interactive expression is not disqualified from First Amendment protection. Interactive Digital Software, 329 F.3d at 957. The breadth of the First Amendment protects expression pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games. Id. (emphasis added). In this instant matter, petitioner s expression takes the form of an interactive game, but this does not remove First Amendment protection of that expression. A distinction between interactive and non-interactive expression is an elusive one to make. All expression involves both and speaker and a listener, and even the most traditional print media involves interaction between the two. Any form of expression requires the listener or reader to engage in give-andtake with the speaker, and a novel, for example, elicits the participation of the listener in the same immediate and interactive way as a game. B. Petitioner s Expression is not Commercial Speech Because it is Not Solely Related to Economic Interests The Fourteenth Circuit incorrectly held that petitioner s expression is commercial speech. The Court, in Central Hudson Gas & Electric Corp. v. Public Service Committee, 447 U.S. 557, 561 (1980), held that commercial speech is expression related solely to the economic interests of the speaker and its audience. (emphasis added). Because expression becomes commercial speech when it is solely related to the economic interests of the speaker and listener, [c]ommercial speech is best understood as speech that merely advertises a product or service for 21

business purposes. Cardtoons, 95 F.3d at 970. Moreover, as the Cardtoons court stated, expression [is] not transformed into commercial speech merely because [it is] sold for profit. Id. (quoting Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761 (1976)). Petitioner s expression in this case is not solely related to the economic interests of the speaker and its audience. Though petitioner profits from its expression, profit alone does not transform expression to commercial speech. As the Court held, expression receives less First Amendment protection when is related solely to the economic interest of the speaker. Such an inquiry separates commercial speech from for-profit expression; commercial speech analysis applies in the limited circumstance were the purpose of the expression is to propose a commercial transaction. Here, petitioner s expression is informative as well as commercial. Consumers purchase petitioner s aggregation service not because a player s name is on the website, but because the player s statistics are disseminated through the website. As the Tenth Circuit stated in Cardtoons, the paradigmatic example of commercial speech is expression that exists only to advertise the speaker s commercial product. Even in advertising, however, one can easily imagine expression that is both an advisement for business purposes and noncommercial speech. Applied directly to the content in this case, commercial speech scrutiny would apply if petitioner used the statistical information and players names in order to solicit consumers. However, petitioner s aggregation and presentation of statistics is the source of its customers; the use of players names is incidental to the use of statistics and serves as an identifying marker that a certain player had certain statistics in a particular game. 22

Because the First Amendment protects non-traditional, for profit dissemination of publicly available, historical data, the Court must then balance the First Amendment protections against the right of publicity claim. C. Petitioner s First Amendment Right of Expression Outweighs Respondent s Right of Publicity Neither the right of publicity nor the rights guaranteed by the First Amendment are absolute. Put simply, the First Amendment considerations outweigh the right of publicity claim unless the economic interests of the respondent are harmed. As this Court held in Zacchini, the interest of the state in protecting one s property right in his or her right of publicity must be balanced against First Amendment considerations. As a California court recently characterized the Zacchini balancing, [t]he First Amendment requires that the right to be protected from unauthorized publicity be balanced against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press. Gionfriddo, 114 Cal. Rptr. 2d at 314 (citations omitted). The interest protected by the right of publicity is not an abstract one, but primarily an economic, property interest. In Zacchini, this Court stated that the primary goal of the right of publicity is to focus [] on the right of the individual to reap the reward of his endeavors, and therefore uses that go[] to the heart of [a person's] ability to earn a living are particularly scrutinized. 433 U.S. at 567, 573. As the Cardtoons court stated, The justifications offered for the right of publicity fall into two categories, economic and noneconomic. The right is thought to further economic goals such as stimulating athletic and artistic achievement, promoting the efficient allocation of resources, and protecting consumers. In addition, the right of publicity is said to protect various noneconomic interests, such as safeguarding natural rights, securing the fruits of celebrity labors, preventing unjust enrichment, and averting emotional harm. 23