The IP of Baseball Statistics

I missed this yesterday, but the 5/16 issue of the New York Times has an article by Alan Schwarz about the legal battle between Major League Baseball and CBC Distribution and Marketing Inc., a small St. Louis company that offers fantasy baseball services. The dispute centers on whether or not CBC has the right to use players' names and statistics as a part of their services without paying a license to Major League Baseball Advanced Media, which purchased the player's internet and wireless rights in January 2005.

While this seems a little crazy at first (I mean, can MLB copyright the fact that Babe Ruth hit 714 home runs, or that Johnny Damon is 1 for 16 against the Red Sox so far this year?-- no, as a 1997 ruling involving the NBA has decided), there is a real issue here. From the article:

Rather, the central issue concerns celebrities' ability to control use of their names in commercial ventures, and how this "right of publicity," which has developed under state common law and statute over the last half-century, may commingle with Constitutional press protections under the First Amendment.

The term "right of publicity" was coined in 1953 when, in a case involving baseball, a court ruled that Topps Chewing Gum company could not print trading cards that featured baseball players' names and likenesses without their permission.

In 1970, in a case starkly similar to the CBC case, a Minnesota state court found that two baseball board games, each of which used only names and statistics, misappropriated the players' marketable identities and was subject to license.

But other subsequent cases have favored First Amendment concerns over the celebrities' right of publicity. Several courts have maintained that the dissemination of information, even for profit or for entertainment, cannot be curtailed by any state's right-of-publicity laws. In its court filings, CBC argued that it relied on baseball players' names and statistics "as their lifeblood in much the same way that the sports sections of newspapers do."

It's pretty clear to me that CBC is not misrepresenting their use of David Ortiz's name in their service as an endorsement by David Ortiz, but simply using the facts of his performances to provide a service. And the crux of the case is whether or not that is ok. Eugene Volokh, a professor of law at U.C.L.A., is quoted in the article as suggesting that if MLB wins this case, where is the line drawn? Would the use of someone's name in Trivial Pursuit or Jeopardy also be a violation of the right of publicity?

As a matter of economics, I can't see any basis for not allowing the use of baseball statistics in these services. It is not misrepresenting any facet of the service, and doesn't reduce the incentives to produce the "infringed" product, or any other future innovation derived from it. ("It" being baseball statistics, games, or players.) What it does do, though, is allow MLB to restrict the number of (and suppliers of) fantasy games that use baseball statistics. As the article points out, while 3 years ago there were dozens of options for fantasy baseball services, there are now only 7 licensed services. And that doesn't seem good at all.