Three Strikes and They\u27re Out at the Old Ball Game: Preemption of Performers\u27 Rights of Publicity Under the Copyright Act of 1976

Presently, broadcasters and cable television companies deal directly with the two baseball leagues and the individual clubs, which in turn purport to sell all of the rights regarding the televising of the games. The players wanted to be a part of those contracts to get a bigger share of the television revenues. In the Baltimore Orioles case both sides sought a judicial resolution of their rights in the telecasts. The baseball players\u27 demand was based on their rights of publicity in their performances. This common law right allegedly precluded the clubs and the leagues from contracting with the broadcasters for televising the players\u27 performances without first obtaining their express consent. Thus, the players asserted that the telecasts of major league games were unauthorized and, therefore, infringed their property rights. In response, the clubs alleged that they owned the exclusive right to broadcast the games as well as all rights in the telecasts. The opinions in the Baltimore Orioles litigation are seriously flawed. The courts did not correctly analyze what protection the Copyright Act extends to the telecast of a live event and both courts erroneously applied the Act\u27s preemption provision so expansively that right of publicity claims appear to be extinguished whenever the exploited aspect of an individual\u27s persona is contained in a copyrighted work. This article discusses the opinions in Baltimore Orioles, Inc., v. Major League Baseball Players Association and analyzes the nature and scope of the protection copyright grants to the telecast of a live event such as a baseball game. It points out the flaws in the opinions and demonstrates why the rights of publicity which professional athletes have in their performances should not be preempted whenever those performances are embodied in copyrighted audiovisual works. The last section explains why this article\u27s arguments against federal preemption should also preserve the publicity interests that actors, singers, and other entertainers have in their acts, routines, and performing styles whether or not their performances are fixed in copyrighted works