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The professional sports industry has become entangled in a web of intellectual property litigation over issues ranging from who owns player statistics in fantasy leagues to who possesses the view of a baseball park. Legal experts say technology � specifically the Internet � is revolutionizing the way fans view and participate in sports while simultaneously creating a host of new legal headaches. In the last two years alone, more than a dozen copyright infringement and other IP-related suits have popped up in the sports world. And the sports industry, attorneys note, is struggling to keep pace with technology, claiming that numerous copyright violations are occurring through new media they can’t control. Among their complaints: Fantasy Web sites allegedly are illegally providing users with player statistics, infringing on players’ right of publicity, and profiting from unlicensed material. Web sites using “real time” gamecasts are allegedly transmitting copyrighted information, and profiting from it, without a license. TiVo is allegedly allowing the unauthorized television distribution of National Football League games in areas that have been blacked out due to lack of ticket sales. That was one of the NFL’s complaints about TiVo to the Federal Communications Commission, which last year approved a new portable feature by TiVo despite the NFL’s concerns. The new feature allows consumers to remotely access programs that they’ve recorded. The NFL’s main concern is that TiVo subscribers could remotely access games from areas where they are blacked out or simply not available and use the games there for commercial purposes. TiVo allows viewers to pause, rewind, and slo-mo “live” TV. The NFL and TiVo reached an agreement last October in which the two sides will work together to protect live NFL games against real-time retransmission. “It’s not sports plus technology anymore. It’s sports plus the Internet, plus TiVo, plus these new technologies that allow fans to manipulate content . . . that’s a whole new game, and it’s causing the sports industry to rethink how they interface with their fans,” says professor Jack Williams, a sports law expert at Georgia State University College of Law. Williams, author of the Cardozo Law Reviewarticle “Who Owns the Back of a Baseball Card?” believes the sports industry is waging an unsuccessful war to control technology. “It’s like China trying to control faxes and the Internet � they’ll not be able to control it. The smart people will start to embrace it,” says Williams. “You’re just seeing the tip of the iceberg in what is being disclosed right now.” Mike Lufrano, general counsel to the Chicago Cubs, which last year settled a highly publicized copyright infringement case involving ownership rights to the view of games in Wrigley Field, notes that technology can be a double-edged sword for sports groups. For example, he says, the Cubs have a Web site that reaches millions of people. On the flip side, the Internet also provides people opportunity to spread false information about the Cubs. “Technology provides many unique opportunities and many challenges,” Lufrano says. “We have to continue to be vigilant to protect our rights and our trademarks.” WHO OWNS STATS? But the litigation goes both ways. Plaintiffs claiming copyright infringement have taken several swings at Major League Baseball (MLB) in recent years. On Feb. 7, CDM Fantasy Sports, a fantasy games operator, filed suit in St. Louis against MLB’s interactive division, aiming to retain rights to produce and promote fantasy games without a license. The issue in CDM Distribution & Marketing v. MLB Advanced Media: Who owns player stats? According to CDM’s lawyer, Rudy Telscher, MLB Advanced Media is expected to decrease “significantly” the number of companies offering licensed fantasy games, therefore denying fantasy leagues the right to use information like player statistics without a license. CDM is challenging MLB’s authority to license anybody, Telscher says, and is seeking to use player stats without MLB’s permission. He says CDM doesn’t dispute that it needs an MLB license for trademarked products such as team logos. But, he argues, statistics are in the public domain, like telephone numbers. “All we need is the player statistics, and we believe we have the right to use them because they’re public information,” says Telscher. “The Supreme Court has held that mere raw data where creativity is not involved is not something that would be protected by copyrights.” Telscher of Clayton, Mo.’s Harness, Dickey & Pierce contends that MLB is trying to monopolize the fantasy market. He says that the Internet and fantasy games have revived the baseball industry, and that MLB just wants a bigger piece of the pie. “Now that [fantasy baseball] has become so popular, MLB looks at the revenue and says, ‘We want to exclusively control it,’ ” Telscher says According to the Fantasy Sports Trade Association, more than 10 million people play fantasy football in the United States. Another 6 million play fantasy baseball, spending an average of $175 a year on the game and making fantasy baseball a $1 billion annual business. Jim Gallagher, senior vice president, corporate communications for MLB Advance Media, asserts that baseball officials are not claiming exclusive rights to player statistics. “Player statistics are in the public domain. We’ve never disputed that,” Gallagher says. “But if you’re going to use statistics in a game for profit, you need a license from us to do that. We own those statistics when they’re used for commercial gain.” Meanwhile, Telscher believes his case could have wide implications for the fantasy sports industry. “If the courts issue a ruling that player statistics are in the public domain, it’s going to have an effect on the whole industry that would mean that nobody would need a license for these games,” Telscher says. AN UPHILL BATTLE IP litigator Kent Goss, who represents athletes with regard to their rights of publicity, believes that MLB will have a tough time convincing a court that player statistics warrant copyright protection. He says the test will be weighing MLB’s copyrights and the publicity rights of players against what the public wants. “The public is fascinated with sports, and in particular baseball. Essentially, they can’t get enough of stats,” Goss says. “I think courts are going to want to protect the fans’ rights to use the stuff.” Goss, a partner in Pillsbury Winthrop’s Los Angeles office, cites a 2001 case in which the California Court of Appeal upheld MLB’s right to use past players’ names and statistics. A group of former players sued MLB for printing their names and stats in game programs, claiming their publicity rights were violated. But the court held that these were historical facts, part of baseball history, and MLB had a right to use them. In the current suit in St. Louis, Goss notes that MLB could argue that the methods for compiling player stats are copyrightable. How stats are created, kept, and organized might warrant a copyright argument, he says, “but I think it’s an uphill battle.” A recent copyright battle that drew national attention was the Chicago Cubs’ suit against a group of 10 rooftop owners who charged fans to watch Cubs games from their rooftops, which had a clear view of the ballpark. In December 2002, the Cubs sued, alleging that the game was copyrighted, and that the defendants were profiting from the team’s name, players, trademarks, telecasts, and images without the Cubs’ consent. “It was a tradition where people would go out on the rooftops with a lawn chair and some beer, and there was no money in hands,” says the Cubs’ Lufrano. “That’s a much-different concept of what’s happening today, where some 2,000 people are sometimes paying fees of $100 to $200 a game to watch our product.” The two sides settled the case in 2004, with an agreement that the rooftop owners would pay the Cubs 17 percent of their annual profits for 20 years. Tresa Baldas ( [email protected]) is the Midwest bureau chief ofThe National Law Journal , an ALM publication, where this article first appeared.

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