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Although a dispute is between private parties, the state action necessary for First Amendment protections exists where a state law right-of- publicity claim exists only insofar as the courts enforce state-created obligations that were never explicitly assumed by one of the parties. The United States Supreme Court has directed that state law rights of publicity must be balanced against First Amendment considerations. The United States Court of Appeals for the Eighth Circuit concludes that the former must give way to the latter where the information used is all readily available in the public domain. It would be strange law that a person would not have a First Amendment right to use information that is available to everyone.
C.B.C. Distribution and Marketing, Inc., (CBC) brought this action for a declaratory judgment against Major League Baseball Advanced Media, L.P., (Advanced Media) to establish its right to use, without license, the names of and information about major league baseball players in connection with its fantasy baseball products. Advanced Media counter-claimed, maintaining that CBC's fantasy baseball products violated rights of publicity belonging to major league baseball players and that the players, through their association, had licensed those rights to Advanced Media, the interactive media and Internet company of major league baseball. The Major League Baseball Players Association (MLBPA) intervened in the suit, joining in Advanced Media's claims and further asserting a breach of contract claim against CBC. The district court granted summary judgment to CBC holding that CBC was not infringing the players' rights of publicity under state law, that U.S. Const. amend. I preempted the players' state law publicity rights, and that intellectual property law prevailed over the contract provisions underlying the association's counterclaim. Advanced Media and the MLBPA appealed.
Did the First Amendment preempt the players' state law publicity rights?
The Court of Appeals for the Eighth Circuit disagreed with one of the district court's holdings but agreed with its ultimate decision. A prima facie violation of state law was shown because CBC used the players' names to establish their identities and it did so without their permission and for profit-making purposes. The players' right of publicity had to give way to CBC’s U.S. Const. amend. I rights. The players' names and information were already in the public domain. The association could not enforce the contract because it had breached a contractual warranty.