Friday, February 04, 2005

What's My Name?

A quick entry to remind everyone I'm still alive, and that baseball still exists in the Super Bowl void...

Here's a couple of headlines, one of them Yankee-related:

Yogi Sues TBS Over Sex and the City Ads (Smoking Gun)

MLBPA Signs Over Fantasy Baseball Rights (Darren Rovell ABC News)

Two baseball stories this week, both on what we legal types call the Right of Publicity. In layman's terms, that's the right to control use of your name and likeness, and it's sometimes cast in terms of a right to privacy.

In Yogi's case, he's suing for $10MM for an ad that TBS put out for its re-runs of Sex and the City. The ad asked for a definition of one of the show's lamer catch-words, the "yogasm," giving as one multiple-choice answer "Sex with Yogi Berra."

Now, the problem is that under the law of New York, if you're going to use someone's name or photo in an advertisement, you'd better get their permission first. Nobody bothered to get a permission from Yogi before releasing this ad.

One of the top ways to protect your name and your right to it is to do a high-profile suit against anyone who steps over the line, even a little bit. Yogi's claim for $10MM over a stupid advertisement may seem like a petty stunt, but in this case, Yogi's name is his livelihood. It doesn't hurt that he might not be the biggest Sex and the City fan, or that the ad suggested Kim Catrall's character might've done something only Mrs. Berra is supposed to be doing.

Guaranteed, there won't be as many articles written when this case settles, as were written about the initial complaint.

The other bit is about baseball fantasy games (which sounds like something you might find on Anna Benson's website, but it just really refers to Rotisserie-style baseball roster games). For years, if you wanted to use the names of the various major leaguers in relation to a game, you'd have to license the names from the player's union. Ditto for the team names, which you'd have to license from Major League Baseball.

If you're a video game devotee, I'm sure you're familiar with at least one game that featured teams and player statistics that seemed pretty close to their real-life counterparts, but all the names had been scrambled, like a baseball Witness Protection Program. In other words, the Arizona Diamondbacks might be called the "Phoenix Snakes," and that tall, intimidating lefty might be called "Tommy Long" instead of "Randy Johnson." Oh, and because his likeness as well as his name were protected, in the video game, the Unit's avatar might be a black guy with a Fu Manchu moustache, instead of a white guy with a beard. Those were the unlicensed products.

What might not have been as intuitive is that MLB and the MLBPA were also licensing the use of names for online fantasy baseball games--and, by association, claiming the right to license your do-it-yourself local rotisserie league (do these things even exist, anymore?). The claim is that a player's stats are as much part of his "identity" as his name and his face.

This isn't an uncontroversial question. Lots of fantasy game providers have paid licensing to the MLBPA and MLB, probably because it's cheaper than litigating. But there is generally an exception to the right of publicity for news and newsworthy individuals. That is, if someone takes a picture Jason Giambi on the street, the New York Post wouldn't need to get Giambi's permission to run the photo--so long as it was part of a news item. One could argue that a player's major league stats are simply news items, and that any news outlet is free to report them without paying any stinking licensing fees.

The story I've linked is one about how MLB and the MLBPA have consolidated their rights with a single entity: MLB Advanced Media. MLB controlling these rights is a concern, because MLB Media offers a number of fantasy games online. The Major League teams being the little monopolists that they are, the worry is that might want to run every other Fantasy Baseball outlet on earth (like Yahoo, ESPN, and FOX Sports) out of business with non-competitive pricing.

It's not likely to happen, but if it does, these issues of publicity could start percolating through the Courts as early as this Spring.

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