What's the Score? Does the Right of Publicity Protect Professional Sports Leagues?

Article excerpt

INTRODUCTION

For nearly forty-five years, courts have protected the marketable identity of professional athletes and other celebrities in a number of factual settings, under the rubric of "the right of publicity."(1) During that time, changes in technology have altered the concept of what constitutes a protectible, marketable identity. This Article discusses: (1) the breadth of this protection as applied to athletes, groups of athletes; and (2) whether it applies to

sports leagues.

In doing so, this Article examines: (1) what constitutes the right of publicity; (2) whether the right applies to sports leagues; and (3) whether sports leagues can use the right of publicity to, inter alia, restrict the dissemination of scores and statistics while games are in progress. To provide a paradigm for how sports leagues could use the right to protect its interests, this Article uses the National Basketball Association ("NBA" or "League") as a prototype. Recently, the NBA brought suit against a company that provides "real-time," that is, virtually contemporaneous, updates of sporting events.(2) The NBA brought several federal causes of action, including Lanham Act(3) claims, copyright infringement claims, as well as state common law causes of action.(4) Although the NBA brought a New York State common law "hot-news" misappropriation cause of action, it did not bring a right of publicity cause of action, probably because of New York state courts' position that there is no separate common law right of publicity outside of the New York Civil Rights sections 50 and 51.(5) Part I of this Article discusses how the NBA would have fared had it brought a right of publicity cause of action in other jurisdictions assuming that the League has a marketable identity.(6) Part II examines whether leagues have a protectible marketable identity independent of the marketable identities of their constituent athletes and, if such a protectible marketable interest does exist, whether game statistics and scores evoke this identity.(7) The Article concludes that, in those states that recognize the right of publicity, that right would protect a marketable identity of sports leagues independent of the marketable identity of individual athletes.(8)

I. BACKGROUND

A. The Right of Publicity Defined

The right of publicity protects athletes' and celebrities' marketable identities from commercial misappropriation by recognizing their right to control and profit from the use of their names and nicknames,(9) likenesses,(10) portraits,(11) performances (under certain circumstances),(12) biographical facts,(13) symbolic representations,(14) or anything else that evokes this marketable identity.(15) Thus, any trait that uniquely identifies celebrities or athletes implicates their marketable identities. "`[T]he reaction of the public to name and likeness, which may be fortuitous or which may be managed and planned, endows the name and likeness of the person involved with commercially exploitable opportunities.'"(16)

One of the seminal right of publicity cases is Haelan Laboratories v. Topps Chewing Gum, Inc.(17) In Haelan, the Second Circuit coined the term "right of publicity" which, in contrast to the right of privacy (the right of natural persons to live their lives in peace), protects the right of "prominent persons (especially ... ball-players)" to receive compensation "for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways."(18) Haelan involved a suit brought by one chewing gum manufacturer against a rival manufacturer; the plaintiff alleged that the defendant induced athletes to breach their contracts for the use of those athletes' pictures in the marketing of chewing gum.(19) The athletes signed contracts with both manufacturers, allowing them to use the athletes' pictures on baseball trading cards.(20) The court rejected the defendant's argument that there is no assignable right or "interest in the publication of [a prominent person's] picture other than his right of privacy. …