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Fantasy Baseball First Amendment Rights

By Judith L. Grubner

Certain state laws have created an intellectual property right known as the 'right of publicity,' protecting the rights of individuals to control the commercial use of their identities. The right of publicity differs from the 'right of privacy,' which is more generally understood to be a right of individuals to protect against the dissemination of private facts about themselves that can cause injury to personal feelings, such as embarrassment, indignity, and mental trauma. Although the right of publicity bears some relationship to trademark, copyright, misappropriation, defamation, and false advertising law, it is a distinct intellectual property right. McCarthy on The Rights of Publicity and Privacy ”1:1-1:8 (2007).

The first case to apply the right of publicity involved chewing gum trading cards featuring the images of professional baseball players. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953). Recently, the right of publicity of baseball players again featured prominently in a federal appellate decision. C.A.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007). The Eighth Circuit concluded that the First Amendment rights to run a fantasy baseball league by using the names, performance, and biographical data of professional baseball players superseded the players' rights of publicity.

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