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News

You Can Play Fantasy Baseball Without a License, But Can You Google It?

(August 16, 2006) - Two controversies in the past week highlighted the lengths to which some folks will go in trying to control language and information. The first involved that venerable American sit-down sport, fantasy baseball; the second concerned a newer, but even more popular pasttime, "googling" on the Internet.

No Monopoly on Baseball Stats

On August 8, U.S. Magistrate Mary Ann Medler ruled that the Major League Baseball Players Association and its interactive media arm, called Major League Baseball Advanced Media, can't not stop fantasy game websites from using baseball players' names, batting averages, and other statistics. The Players Association has long insisted that it has the right to license (or not) fantasy baseball games.

The CBC company, maker of 14 such games, had filed suit asking for a declaratory judgment that it does not need a license. Magistrate Medler agreed, writing in her decision that both the players' names and their statistics are in the "public domain" - readily available in newspapers and other media.

The decision turned on the "right of publicity" recognized in 28 states. Advanced Media had initially claimed that fantasy baseball also violated federal copyright and trademark law, but later agreed to dismiss those claims, probably because it recognized that statistical information is not covered by copyright, and the simple use of players' names in these circumstances was not a trademark violation. (It would have been a stronger trademark case if CBC used players' pictures or team logos.)

The right of publicity gives celebrities control over the use of their identities for commercial purposes such as advertising. For example, it prevents companies from using a celebrity's name or photo to sell a product without the celebrity's consent (which usually involves a large infusion of dollars for the endorsement). One famous case involved the "Here's Johnny" Portable Toilet company - a clever pun, but one that TV personality Johnny Carson did not appreciate. ("Here's Johnny" was the famous tag line on Carson's late-night show.) The court held in that case that the potty company had unlawfully exploited Carson's identity to obtain a commercial advantage.1

The right of publicity, obviously, doesn't prevent biographers from writing about celebrities or journalists from covering news events. In a 1977 case, though, the Supreme Court recognized the right of publicity of a performer called "the human cannonball" when a TV station broadcast his performance without his permission. The Court rejected that station's argument that its First Amendment rights trumped the right of publicity.2

In the fantasy baseball case, Magistrate Medler ruled against the right of publicity because "there is nothing about CBC's fantasy games which suggests that any Major League baseball player is associated" with the games, "or that any player endorses or sponsors the games in any way." She noted that "all fantasy game providers necessarily use names and playing records."3

The magistrate went on to say that even if Advanced Media (which represents almost all Major League players) had a right of publicity in their names and statistics, fantasy games are protected by the First Amendment, which outweighs the right of publicity. She relied on a couple of precedents: a California case involving information and video clips that conveyed "bits of baseball history" (ironically, the information was provided by Major League Baseball Properties, Inc., and four individual players were the unsuccessful plaintiffs); and an Oklahoma case involving "CardToons," parody baseball cards that were protected by the First Amendment and thus could not be restrained even if they violated the right of publicity.4

Some might find it surprising that a fantasy game company found it necessary to go to court to establish its right to use publicly reported statistics. But the world of intellectual property is not always logical. What may seem obvious and common sensical may not necessarily be the law; and even if the law favors the free speech side of the debate, industry practice, including the in terrorem effect of "cease and desist" letters, often squelches expression.5 Kembrew McLeod, in his book Freedom of Expression®, and David Bollier in Brand Name Bullies, give hundreds of examples of questionable assertions of corporate control over common words, names, and images.6

Can I Google This?

An equally dubious example of industry overreaching is Google's attempt to suppress the new verb "to google." As reported in an August 14 article in the British newspaper The Independent: "Search engine giant Google, known for its mantra 'don't be evil,' has fired off a series of legal letters to media organisations, warning them against using its name as a verb."7

According to The Independent and to a number of blogsites that picked up the story, Google wants to stop its name from entering the language as a verb because once the name becomes "generic," it can no longer be protected by trademark law. Hence, the term "genericide" for what would seem on the surface to be a stroke of luck - a brand becomes so popular that its name substitutes for the product or process itself. Historic examples include "Xerox," "Kleenex," and "band-aid."

Actually, Google has been sending cease-and-desist letters since 2003, when it tried to stop the lexicography site Wordspy from defining "google" as a verb synonymous with "search."8 Accompanying that letter was a circular giving examples of proper and improper uses of the term. This circular, which became the subject of understandable mockery in the blogosphere, attempts the impossible job of dictating how language should evolve. To wit:

Appropriate: "He ego-surfs on the Google search engine to see if he's listed in the results."

Inappropriate: "He googles himself."

and

Appropriate: "I ran a Google search to check out that guy from the party."

Inappropriate: "I googled that hottie."9

Shortly after the Wordspy episode, Google tried to persuade the publishers of the Oxford English Dictionary not to list its trademark as a word, but the effort was ultimately unavailing. According to Wikipedia, "The verb 'Google' was officially added to the Oxford English Dictionary on June 15, 2006, and to the 11th edition of the Merriam-Webster Collegiate Dictionary in July, 2006."10

It's unlikely that Google would have a viable claim of trademark infringement or trademark dilution for ordinary written use of "google" as a verb. Trademark infringement requires commercial use and a likelihood of confusion; trademark dilution also doesn't apply to noncommercial uses, and courts have recognized First Amendment defenses. So, are Google's lawyers justified in sending out cease and desist letters that have scant legal basis?

Google's fear of "genericide" may provide some justification for the letters, even though it makes Google look both silly and untrue to its free-expression credo. In the long run, though, its attempt to stop the growth of language may be self-defeating as well as unsuccessful. As one blogger observed:

How likely is Google to lose market share if they succeed in persuading people not to use their name as a verb? Very likely, actually. As long as people talk about googling for information, they will think of using Google first before other search engines. It's no mistake that as Google has increased its marketshare, the use of their name as a verb has increased throughout media and colloquial use.

Is the potential loss of market share worth what Google will invest over the next 5-10 years to persuade people not to use their name as a verb? One has to wonder.11

Update: In October 2007, the U.S. Court of Appeals for the Eighth Circuit agreed that CBC had a First Amendment right to distribute its fantasy games, writing: "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." In June 2008, the Supreme Court denied review, thus ending the case in fantasy baseball's favor. The court of appeals decision is available at http://www.ca8.uscourts.gov/opndir/07/10/063357P.pdf

NOTES

1. Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983).

2. Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977).

3. CBC Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, No. 4:05CV00252MLM (E.D. Mo. Aug. 8, 2006).

4. Gionfriddo v. Major League Baseball, 94 Cal. App.4th 400 (2001); CardToons v. Major League Baseball Players Association, 95 F.3d 959 (10th Cir. 1996).

5. See Marjorie Heins & Tricia Beckles, Will Fair Use Survive? Free Expression in the Age of Copyright Control (Free Expression Policy Project, 2006), p. 4, and Intellectual Property and Free Speech in the Online World (FEPP/Fair Use Network, 2007) (2007 update).

6. See http://kembrew.com/books/; http://www.brandnamebullies.com/.

7. Stephen Foley, "To google or not to google? It's a legal question," The Independent, Aug. 14, 2006.

8. See http://listserv.linguistlist.org/cgi-bin/wa?A2=ind0302D&L=ads-l&P=R2450 (email from Wordspy manager Paul McFedries to the American Dialect Society mailing list, quoting the text of Google's letter).

9. See Frank Ahrens, "So Google Is No Brand X, but What Is 'Genericide'?," Washington Post, Aug. 5, 2006, p. D01, http://www.washingtonpost.com/wp-dyn/content/article/2006/08/04/AR2006080401536.html; "This word just in…," posted by Doug, July 10, 2006, http://xooglers.blogspot.com/2006/07/this-word-just-in.html (both quoting the Google memo).

10. http://en.wikipedia.org/wiki/Google_(verb).

11. "Google emulates Xerox debacle: asks Washington Post not to…," posted by Michael Martinez, 8/9/06, http://www.seomoz.org/blogdetail.php?ID=1274.


The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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