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IP/Entertainment Case Law Updates

CBS Interactive Inc. v. National Football League Players Association, Inc., et al.

Court grants summary judgment in favor of online fantasy football provider who continued to use the names and statistics of NFL players after refusing to renew its license with NFL Players Association; court held that Eighth Circuit ruling that First Amendment protected fantasy baseball provider’s use of baseball players’ names and statistics without authorization was controlling

Defendant National Football League Players Association (NFLPA) acts as the exclusive collective bargaining representative for active players in the National Football League (NFL). Individual NFL players assign their Group Licensing Rights to NFLPA and its licensing affiliates. NFLPA then has the right to license the use of the individual players’ names, signatures, facsimile, voices, pictures, photographs, likenesses, and biographical information in connection with “group licensing programs” involving six or more players. Under a separate agreement, NFLPA then grants Players Inc. “the exclusive worldwide right, license, and privilege of utilizing the . . . Group Licensing Rights.” Players Inc. is a for-profit corporation and a partially-owned subsidiary of NFLPA.

Plaintiff CBS Interactive operates “fantasy sports” competitions on, including fantasy football. Fantasy football refers to a game in which participants simulate management responsibilities of the roster of an NFL team by, among other things, (1) scouting, drafting, and trading players on their teams; (2) adding and dropping players; and (3) otherwise manipulating the team’s roster over the course of the season-long competition.

To facilitate the competition among the participants in a given fantasy football league, the standard fantasy football game utilizes the actual statistics generated by NFL players during the course of the regular season. To be successful in managing their rosters during the course of the fantasy football season, participants access sports news information such as performance statistics, player reviews, injury updates, and other information regarding the players and their respective NFL teams. Providers of fantasy football games typically track, compile, and post the publicly available statistics of the players to enable their customers, the participants, to see whose team is winning and to aid the participants in deciding which players to add, drop, trade, or start each week.

Prior to the NFL 2008/2009 regular season, CBS Interactive entered into licensing agreements with Players Inc. These licensing agreements authorized CBS Interactive to use, in connection with its fantasy football games, the “names, likenesses (including without limitation, [jersey] numbers), pictures, photographs, voices, facsimile signatures and/or biographical information” of the individual NFL players who had entered into the Group Licensing Agreements. The last of these licensing agreements involving CBS Interactive expired on February 29, 2008.

In 2005, the fantasy baseball industry began litigation regarding the rights and obligations implicated by licensing agreements similar to the licensing agreements at issue here. A provider of fantasy baseball games sought a declaratory judgment to establish its right to use, without a license, the baseball players’ names and statistics in connection with its fantasy baseball products. In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P. the district court determined that the plaintiff’s use of the players’ names and playing records did not violate any right of publicity held by the defendants, but that even if it did, the plaintiff enjoyed a First Amendment right to use the players’ names and playing records that prevailed over any right of publicity. The Eighth Circuit affirmed the district court’s decision on October 16, 2007 (C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007)), and the United States Supreme Court denied certiorari on June 2, 2008.

Following the Eighth Circuit’s decision, Players Inc. approached CBS Interactive to discuss CBS Interactive’s continued use of the names and statistics of the individual players in connection with the fantasy football games that CBS Interactive provided to its customers during the 2008/2009 regular season. CBS Interactive refused to renew its license. According to CBS Interactive, Players Inc. informed CBS Interactive that the Eighth Circuit’s decision in the fantasy baseball litigation was wrongly decided and that if CBS Interactive failed to pay the licensing fees, Players Inc. would file a lawsuit.

CBS Interactive initiated a declaratory action against NFLPA on September 3, 2008, seeking a declaratory judgment extending the Eighth Circuit’s ruling in the fantasy baseball litigation to CBS Interactive’s use of the football players’ names and statistics in connection with its fantasy football games. On September 9, 2008, Players Inc. filed its own lawsuit against CBS Interactive in the United States District Court for the District of Southern Florida. NFLPA then moved, on September 30, 2008, to transfer venue of this case to the United States District Court for the Southern District of Florida.

In the Minnesota litigation, plaintiff filed for summary judgment, arguing that the material facts in this case concerning the nature of the information used and the claimed right of publicity are the same as those in C.B.C. Distribution; thus, the Eighth Circuit’s decision in C.B.C. Distribution commands the same result here. The court agreed with plaintiff and rejected defendants’ arguments that the amount of information used by plaintiff as opposed to that used by C.B.C. Distribution and the differences between baseball and football made the Eighth Circuit’s decision inapplicable. The court held that CBS used essentially the same information found allowable in C.B.C. Distribution and that CBS did not use the players’ names or likenesses in a manner that would lead the public to mistakenly believe that the players endorsed CBS’s fantasy football service. “The court doubts that the Eighth Circuit intended in C.B.C. Distribution to articulate some special application of First Amendment jurisprudence to cases involving baseball only. Accordingly, the court declines to indulge in a philosophical debate about whether the public is more fascinated with baseball or football or the statistics generated by each. The record before the court fails to reveal any genuine issues of material fact. Because the Eighth Circuit’s decision in C.B.C. Distribution is controlling, CBS Interactive is entitled to judgment as a matter of law.”

The court also denied defendants’ motion to transfer venue to Florida. The court noted that both parties engaged in forum shopping, so it gave little weight to the first-to-file rule. The court next conducted the three-part balancing test to determine whether the case should be transferred. The court concluded that the convenience of the parties, convenience of the witnesses and the interests of justice did not necessitate transferring the litigation to Florida.

The court granted defendants’ motion to dismiss plaintiff’s anti-trust claims because, according to the court, defendants had a good faith belief that the holding in C.B.C. Distribution was not controlling.

The court also held that its decision granting summary judgment to plaintiff rendered moot plaintiff’s claim that defendants’ state law publicity rights are preempted by federal copyright law and its claim that its fantasy football games do not infringe on defendants’ publicity rights.

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