Fantasy (baseball) doesn't violate the right to publicity

C.B.C. Distribution & Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 2006 WL 2263993 (E.D. Mo.)

Prof. Patry has discussed the preemption aspects of this decision allowing a fantasy baseball website to use players’ names in connection with their statistics. It is indeed a long opinion, finding against Major League Baseball on almost every theory advanced. A couple of points of note: the court relied on video game regulation cases to hold that fantasy baseball’s interactive nature supported First Amendment protection for the uses, which provide an engaging “education in baseball.” The court also rejected the argument that the fantasy baseball games were commercial speech. (Even if the court had agreed with MLB, Central Hudson might have required fairly vigorous protection for fantasy baseball games, since their use of players’ names and statistics was neither false nor misleading.) Finally, the court rejected the argument that the plaintiff-counterdefendant was bound by an earlier license that stated it would have no rights to use players’ identities after the license expired, mainly on public policy grounds protecting free dissemination of factual information, a result with possibly broad significance.