SI.COM: “Judge: Statistics not intellectual property of MLB”
The decision is up on Pacer:
C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, LP, Case no. 4:05CV00252MLM (E.D. MO August 8, 2006).
Quick summary: C.B.C. organized fantasy baseball leagues, a ‘paper’ (or online) game where users compiled their own teams consisting of major league players and competed using those players’ ‘real’ statistics. MLB alleged infringement of those players’ rights of publicity.
Held: C.B.C. use of the players’ names in conjunction with their public domain statistics (as opposed to if they had used the names in conjunction with the players’ likenesses), does not constitute use of the name as a symbol of identity and therefore is not an infringement of the players’ rights of publicity.
As a policy aside, it was noted that use of a player’s statistics in fantasy baseball is likely to enhance a player’s popularity, and thus does not contradict the policy goal of the right of publicity (Ed. note: ugh).
Additionally, C.B.C. has a protectable First Amendment interest in the use of the statistics.
Background here.

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Wall Street Journal: On MySpace, Millions of Users Make ‘Friends’ With Ads (Free online today only), on the practice of movie studios to create MySpace personal pages for fictional characters from their movies, such as Ricky Bobby of “Talledega Nights,” and John Tucker of “John Tucker Must Die.” Presently there are numerous MySpace pages for fictional characters, maintained by fans. In response to the John Tucker page, one MySpace user notes:
“It’s very coy. They’re being sneaky,” says Jesse Kozel, a 25-year-old from Florida, listed John Tucker as his friend without realizing the studio paid for the site. Mr. Kozel says he knew the site wasn’t run by the actor, but assumed it was one of the many hundreds of amateur sites created in honor of movie characters.

So he mistakenly concluded that the authorized site wasn’t authorized. False false endorsement?

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I’m on vacation this week but I made a point of finding wi-fi so I could bring this article to your attention, from the NY Times Sunday magazine: The Brand Underground. It had the promise og being about something – namely how the latest generation is responding to the consumerist lifestyle but ultimately the article (and perhaps, the latest generation, deteriorating into just a list of places to buy $60 t-shirts.
When I read sentences such as “there is an apparent disconnect between the idea of ‘brand’ and the idea of ‘underground’, I am reminded that the song “Boys of Summer” that contains the lyric “I saw a Deadhead sticker on a Cadillac”, is over twenty years old.
So if there will be a change in the anti-sell-out/sell-out cycle, this article didn’t make a convincing case (to me at least), nor did it really demonstrate why these $60 t-shirts are more significant than expensive t-shirts of yesteryear.
There was, however, this interesting (to a trademark lawyer) observation:
The Hundreds [a brand discussed in the article] lifestyle and its components — Los Angeles, skateboarding, music, art — sound a little vague and may be most apparent by analyzing a recent Hundreds T-shirt graphic. The shirt has a title: Jerky Boy. The design takes the logo of Tommy Boy, the pioneering hip-hop label, and reimagines its three silhouette figures in the style of the moshing cartoon teenager used as an emblem of the legendary Southern California punk band the Circle Jerks. Looming over the Circle Jerks mascot, who is repeated in three Tommy Boy poses with props including skateboards and handguns, is “The Hundreds” and the phrase “California Culture.”
Streetwear designers often refer to graphics that riff off some other logo or icon or brand name as “parodies.” Kind of like the Ramones logo, which took the presidential seal but substituted a baseball bat for the arrows the eagle clutches in its talons. But the word “parody” can be misleading: often the visual references are more like a sampled bass line — recognizable to some but not to others — that makes a remix add up to more than the sum of its parts. It can be tribute or mockery or something in between, but the new cultural value that results accrues to the minibrand that did the remixing.
I’m going to totally cop out and blame it on the fact that I’m on vacation and I’m expected to rejoin my family at the beach shortly but I will leave you with a superficial observation – Andy Warhol’s soup cans aptly demonstrates that consumerism and branding are important subjects for artistic comment – however the law does not seem as amenable when that artistic comment appears on clothing.
If we have a generation of designers growing up who have consumed nothing but brands (to the soundtrack of sampled music), then our concepts of infringement and dilution may have to accomodate the way this generation perceives brands.