Intellectual Property Law

Me, Myself, and the Public Domain

By Mike Madison

On the one hand, fantasy sports leagues are slowly confirming their legal right to use names and statistics of professional athletes as part of their businesses, without compensating the players, their teams, or the leagues. Bloomberg reports that CBS Interactive has prevailed on this point over the NFL Players Assocation. Last year, the Major League Baseball Players Association lost a similar suit.

On the other hand, the leagues have certain rights to tell the players what they can and cannot call themselves on the playing field. For a time last year, the NFL and Reebok prohibited the player-formerly-known-as-Chad-Johnson from wearing his new legal name (”Chad Ocho Cinco”) on his jersey. There is your legal name — and then there is your sponsor. The short-lived XFL threw this particular caution to the wind and allowed players to identify themselves on their jerseys using almost anything. Few fans remember Rod Smart, but everyone remembers Rod Smart’s XFL identity. When Rod Smart put on his pads, he was He Hate Me.

On the third hand, it’s one thing to negotiate with corporate America for your identity (and other people’s identities). Maybe it’s the same thing to negotiate with search engines.  The NFL and its sponsors have contractual  rights to tell the players who they are, but they can’t tell the fans who they are.  (Chad Ocho Cinco will always be Chad Johnson to me, just like I look at Ahmad Rashad and see Bobby Moore.)  Using Google’s Profile service, now added to Google’s search results, I can enter into an agreement with Google such that I can tell Google who I am, and Google will report that to my fan(s).  To my fan(s), however, is that material “in the public domain”?  Not necessarily; privacy and publicity laws presumably apply.  (Note Kaimipono Wenger’s Concurring Opinion post on point.)   It’s a good thing I’m not a professional athlete. 

Let’s ask one additional question.  If I can negotiate with Google’s new Profile service to influence what searchers find when they are looking for you (or looking for someone with your name), intending that the information appear in search results, then does Google acquire legal rights against scrapers who appropriate that data and re-purpose it — even commercially?  One possible lesson of the fantasy sports cases is that it may not.   I may own me, but I may not be owned.

Or should I write, “pwned”?

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Full post as published by Madisonian.net on May 01, 2009 (boomark / email).