Some time ago, I linked to a story about how fantasy sports owners were being sued by Major League Baseball, claiming that only MLB had the rights to the stats that come from Major League Baseball. Briefs in support were supplied by virtually every major American sports league, including the NFL, the NBA, the NHL and even the WNBA (there’s fantasy women’s basketball? I’m sure there’s a joke about porn that could go here, but I digress) Anyway, a year ago, they lost.

Yesterday, the case finally wound its way through the appeals process. End result: MLB baseball lost again. One viewpoint:

Today’s holding seems to stand for the proposition that baseball cannot “own” the historical facts of its games (just as famous people can’t own the facts of their biographies), and it protects fantasy sports companies to continue to offer games that are not merely “official” licensed products controlled by the major sports leagues.

Another viewpoint:

The court of appeals held that the First Amendment nonetheless trumps the right of publicity action because “the information 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.” (emphasis added) Actually, it would NOT be strange law. I can assure you that there is no authority for that proposition in the context of right of publicity actions, and that’s because it provides circular reasoning. Public domain, which is an intellectual property concept, simply means the public has a right to certain information, documents or writings because nobody else has rights to it under the law, for example under right of publicity law. Wouldn’t it be “strange law” to say that individuals have no right of publicity if their names are in the public domain? Famous people, by virtue of their fame and fortune, are, by definition, in the public domain. Indeed, the more famous they are, the more they are in the public domain, and thus, the more likely it is that third parties will desire to use their names for commercial gain. In fact, that is the basis for even recognizing right of publicity as a cause of action.