I've always been a little uneasy about fanfic -- not out of solicitude for the intellectual property rights of the producers of Star Trek and The X-Files (for a fair use analysis, see Rebecca Tushnet) -- but because the mainstream media already has an unfair structural advantage in the marketplace of ideas. Why should so much writing talent and creative energy redound to the fame of already famous characters, settings, and situations? As cultural common denominators, Spock and Scully might help obscure writers find a ready-made audience, but at a high price for our society in the skewing of our cultural production. Just as superficial friends can be found endlessly rehashing episodes of South Park and Family Guy in what today passes for conversation, the rise of fanfic bespeaks a decline in community life and a loss of shared, meaningful experiences in the postmodern age.
Fantasy sports leagues are no less problematic. Professional athletes already have a massive influence on American culture, with tragic consequences for some of its most faithful consumers (Stephon Marbury excluded). Competing over their statistical performances, remixed into a season-long narrative of all-star games, validates and reifies their cultural power.
A federal district court reached a similar conclusion in a decision issued last week. In C.B.C. Distribution and Marketing v. Major League Baseball, an online provider of fantasy baseball games sought a declaratory judgment enjoining Major League Baseball from interfering with its business. MLB filed a counterclaim alleging that CBC violated the baseball players' rights of publicity by using their names and statistics without their consent.
A defendant is liable for violating the plaintiff's right of publicity if "the defendant commercially exploited the plaintiff's identity without the plaintiff's consent to obtain a commercial advantage." After reviewing previous right of publicity cases, the court concluded that there was a finding of commercial exploitation only where a defendant used a plaintiff's identity to "create an impression that a plaintiff is associated with the defendant" or to "attract attention to [the defendant's] product," and not when the use of a plaintiff's identity was merely "incidental." The court found that CBC's use of baseball player names did not suggest any association between CBC and the players, and did not distinguish CBC from any other fantasy game provider, "because all fantasy game providers necessarily use names and playing records." Accordingly, the court rejected MLB's counterclaim.
The court went on to consider the theory that "harmful or excessive commercial use of one's celebrity ... could dilute the value of a person's identity." Citing a 2001 California case in which Al Gionfriddo and several other baseball players from the 1930s and 1940s unsuccessfully sued MLB for using their names, likenesses and statistics without their permission (early player contracts didn't include such provisions), the court found to the contrary:
[C]ase law suggests that CBC's use of the names and playing records of Major League baseball players in the circumstances of this case actually enhances the marketability of the players. The plaintiffs in Gionfriddo, who were baseball players themselves, argued that the baseball clubs used players' "information ... to increase interest in baseball, with the belief that this would increase attendance at games." (emphasis added). Additionally, the court concluded in Gionfriddo that "the challenged uses [which] involve[d] statements of historical fact, descriptions of these facts or video depictions of them," would "likely" "enhance[ ]" the players' marketability. As such, it cannot be said that CBC's use of the Major League baseball players' names and playing records in the circumstances of this case deprives the players of their proprietary interest in reaping the reward of their endeavors.
So maybe it's a bit hypocritical that I am now entering my fourth season of fantasy football, and enjoying every moment of it! All I can say in my defense is that fantasy football is the most popular math contest in the history of the world. It's sad, though, that after this and this, it's come to this.
(In case you're curious, here's my team:
QB (1): Drew Bledsoe, Jake Plummer
RB (2): Tiki Barber, Brian Westbrook, Chester Taylor, Tatum Bell
WR (3): Anquan Boldin, Muhsin Muhammad, Lee Evans, Drew Bennett
TE (1): Jeremy Shockey
K (1): None
DEF (1): Cleveland
It's a quirky league. 12 teams, 1/2 point per reception, and a very short bench (3 players). I'll make moves in Week 1 to get a kicker and probably a new defense. Any other suggestions are welcome!)
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