Ping: Jim

[SackAttack]

http://sports.espn.go.com/mlb/news/story?id=2543720

U.S. District Court Judge Mary Ann Medler issued a summary judgment today that fantasy baseball leagues may use player names and statistics without licensing agreements. She ruled that they aren't the IP of MLB or the players, and that the use of player names and statistics are covered under the free speech provisions granted by the First Amendment because they're published in newspapers every day.

I'm curious whether the rationale extends to computer and video games. I expect we'll find out if either Take-Two or Electronic Arts decide to attempt to bypass the agreements their opponents hold with the MLBPA and NFLPA, respectively.

Seems like the MLB/NFL agreements for team nicknames and logos would remain in force, but I'm curious whether you'd see something like the old Triple Play games where the rosters and stats were intact, but the players played for a generic "Los Angeles" and "Detroit" instead of the Los Angeles Dodgers and Detroit Tigers.

[molson]

It certainly wouldn't cover "likenesses" which is an important part of most consol games. But ya, its hard to see how fantasy sports is different than text sims when it comes to player names, except that the former is affected by real life, and the latter by the player and random game elements. Though, I doubt Jim wants to blaze a legal trail with his latest release.

[Solecismic]

I'm giving this a lot of thought for future releases. There are many people to talk to who have been following this case very closely.

Fantasy games are "what is" and text sims are "what if." It's very hard to deliniate between the two legally, as both are based on statistics and names, as now fairly convincingly determined to be in the public domain with regard to a First Amendment challenge.

However, being sued is a huge negative.

I see this as a huge victory. One that gives me a legitimate decision to make with respect to future products.

One thing is for certain. As a result of this ruling, it would be impossible for an organization to obtain an injunction preventing sales while a trial went on. That would make it a lot less expensive to engage in a legal battle, especially as the defense is so clearly outlined by the Lanham Act (and my extended family is chock full o' lawyers).

As far as team nicknames and logos, no way can I touch them. This ruling has no effect there. And if I were doing a 3D game, I'd have to keep the player faces generic. Not that I have any interest in doing a 3D game.

[SackAttack]

Originally Posted by Solecismic

I'm giving this a lot of thought for future releases. There are many people to talk to who have been following this case very closely.

Fantasy games are "what is" and text sims are "what if." It's very hard to deliniate between the two legally, as both are based on statistics and names, as now fairly convincingly determined to be in the public domain with regard to a First Amendment challenge.

However, being sued is a huge negative.

I see this as a huge victory. One that gives me a legitimate decision to make with respect to future products.

One thing is for certain. As a result of this ruling, it would be impossible for an organization to obtain an injunction preventing sales while a trial went on. That would make it a lot less expensive to engage in a legal battle, especially as the defense is so clearly outlined by the Lanham Act (and my extended family is chock full o' lawyers).

As far as team nicknames and logos, no way can I touch them. This ruling has no effect there. And if I were doing a 3D game, I'd have to keep the player faces generic. Not that I have any interest in doing a 3D game.

Yeah, the logos and nicknames seemed like a slam dunk to still have copyright/trademark protections. Facial likenesses too, although I really hadn't considered that with respect to your products.

(Although it would be important for something like the SI sports sims, which have photos of the players.)

But it did seem like this ruling could have an impact at least in terms of allowing you to go back to doing things the way you did in FOF1 with rosters and such.

What I wonder is, if you did a new FOF with real player names, would you invest the time in actually including the statistics of previous years, or is that too much of a manpower investment for a one-man operation?

[thealmighty]

Originally Posted by Solecismic

One that gives me a legitimate decision to make with respect to future products.

And after TCY2 is released later this year, you can start to worry about those decisions.

[AZSpeechCoach]

Originally Posted by Solecismic

And if I were doing a 3D game, I'd have to keep the player faces generic. Not that I have any interest in doing a 3D game.

But Jim, that would make your game Maximum!!!!!!!!

[Poli]

I think Jim's newest game has already went gold.

[Mac Howard]

I suspect that we all assume that using player and club names would result in a breach of IP legal action but has anyone actually been contacted by legal representitives on these lines? I've been in this game for 24 years now and never so much as a bleep from anyone. From what you say above Jim, you originally included names. Were you ever contacted by NFL or player representatives about it?

[Solecismic]

Originally Posted by SackAttack

Yeah, the logos and nicknames seemed like a slam dunk to still have copyright/trademark protections. Facial likenesses too, although I really hadn't considered that with respect to your products.

(Although it would be important for something like the SI sports sims, which have photos of the players.)

But it did seem like this ruling could have an impact at least in terms of allowing you to go back to doing things the way you did in FOF1 with rosters and such.

What I wonder is, if you did a new FOF with real player names, would you invest the time in actually including the statistics of previous years, or is that too much of a manpower investment for a one-man operation?

The question is actually ownership of the stats. FOF tracks much more than is easily obtained from newspapers and other sources that can be considered part of the public domain.

I would have to pay a service to use their information. Most likely much more than the value of those statistics to the customers.

Originally Posted by Mac Howard

I suspect that we all assume that using player and club names would result in a breach of IP legal action but has anyone actually been contacted by legal representitives on these lines? I've been in this game for 24 years now and never so much as a bleep from anyone. From what you say above Jim, you originally included names. Were you ever contacted by NFL or player representatives about it?

I was told I was on the NFLPA's radar. I have no idea what that meant. I suspect that because of this ruling, they will be much less likely to say anything if I do go that route.

A lawsuit coming from a billion-dollar group is an enormous amount of free publicity. And I would milk that for every second of national attention humanly possible.

But, if I do include the names again, I'm going to be careful to follow Lanham to the letter.

[SackAttack]

Originally Posted by Solecismic

The question is actually ownership of the stats. FOF tracks much more than is easily obtained from newspapers and other sources that can be considered part of the public domain.

Ahh. So the decision would be either track stats going forward and ignore the old stuff, but use player names, track only the public domain stuff and sort of hamstring FOF's stat-tracking that way, or pay silly money to include them and not really recoup the value.

And given the circumstances, that means the first option.

Got it.

[Mac Howard]

Originally Posted by Solecismic

I was told I was on the NFLPA's radar. I have no idea what that meant. I suspect that because of this ruling, they will be much less likely to say anything if I do go that route.

The first I ever heard of club/player demands on this was when my Amiga conversion of the Headcoach gridiron text sim was published in the US in 1991. The UK game had NFL club and player names but Wizard Games (Maine) insisted that I remove these before they would sell the game. I did but retained the names in the European game.

I've supplied the games to a couple of professional soccer clubs (one now an English Premiership club) and been in contact with a number of (soccer) players' agents (the best known player was George Best) about game promotion and supplied games to them for assessment, no one has ever raised questions about names.

A lawsuit coming from a billion-dollar group is an enormous amount of free publicity. And I would milk that for every second of national attention humanly possible.

Although I've never had a problem with names I did have a similar situation when a major company claimed that I was misusing their trademark with the title of one game. I received a very aggressive legal letter demanding not only I desist but also that I supply sales figures etc on which they could base compensation claims. It struck me as being a ridiculous claim and I decided to face then down. The British trademark's office, unofficially unfortunately, agreed with my position and even suggested I complain about the trademark application on grounds of prior use. However they wouldn't put anything in writing to support me.

But, I employed a lawyer to send back a letter of equal aggression, even threatening them with action if they attempted to interfere with the game and its promotion in any way or produce a comparable product that could be mistaken for my own. They, of course, didn't know just how big I might be (in truth I could hardly afford the lawyer's fees for the reply letter ) and I never heard from them again.

I've always been convinced that if anyone had the guts to face down claims that it was illegal to use names that are used daily in newspapers, on radio and tv and clearly in the public domain then they would win hands down. Good to see someone has.

But, if I do include the names again, I'm going to be careful to follow Lanham to the letter.

The problem as always, is the cost of defending yourself and if there is a previous case to quote supporting your position then the cost may go no further than a reasonably confident legal reply.

I hope Marc Vaughan comes in on this. I would think he has much to say about it.

[Ben E Lou]

Originally Posted by Solecismic

I'm giving this a lot of thought for future releases. There are many people to talk to who have been following this case very closely.

Fantasy games are "what is" and text sims are "what if." It's very hard to deliniate between the two legally, as both are based on statistics and names, as now fairly convincingly determined to be in the public domain with regard to a First Amendment challenge.

However, being sued is a huge negative.

I see this as a huge victory. One that gives me a legitimate decision to make with respect to future products.

One thing is for certain. As a result of this ruling, it would be impossible for an organization to obtain an injunction preventing sales while a trial went on. That would make it a lot less expensive to engage in a legal battle, especially as the defense is so clearly outlined by the Lanham Act (and my extended family is chock full o' lawyers).

As far as team nicknames and logos, no way can I touch them. This ruling has no effect there. And if I were doing a 3D game, I'd have to keep the player faces generic. Not that I have any interest in doing a 3D game.

Bump.

[Raiders Army]

how do you remember these things?

edit--NM

http://www.operationsports.com/fofc/...8&postcount=67