Scott Pilutik

I am an attorney and consultant living and working in Manhattan, focusing primarily on church/state constitutional law. I'm a recognized expert on the Church of Scientology organization. I also have strong interests in intellectual property law where it intersects with emerging media, and free speech.

I support the efforts of the Americans United for Separation of Church and State, the Freedom From Religion Foundation, the National Lawyers Guild, the ACLU, Creative Commons, and the Electronic Frontier Foundation. I am a member of the New York County Lawyers Association and the New York State Bar Association. I also enjoy (watching) hockey and (doing) photograhy.

Online I can be found on Facebook, Twitter. My resume can be viewed here. I can be reached by phone at 212.645.6241 or by e-mail at pilutik[at]gmail.com.

right of publicity in sports news and data

A high-stakes battle regarding ownership of baseball player names as they relate to sports statistics used in fantasy sports has been simmering for a few years now. MLB lost in the district court, and the 8th Circuit heard MLB’s appeal the other day. This story is a very thorough and interesting recap of the oral argument (where MLB tortures logic in arguing that it has no problem with the public domain nature of the statistics, it’s just the names where they draw the line).

Another story this past week reminded me of the MLB thing. A reporter was ‘live-blogging’ a NCAA baseball game at the University of Louisville, and was asked to leave the press box by school officials, who viewed the blogging as a “live representation” of the game, and it therefore in conflict with MLB’s right to license various revenue streams. See here for original story, and Wendy Seltzer’s blog for commentary.

I really hope the newspaper fights this, but I guess we’ll see. A few years back, some company was reselling golf scores at PGA events (by distributing the information to pager subscribers); the 11th Circuit sided with the PGA(defending against an anti-trust claim), based on a sweat of the brow theory, since golf scores have to be physically gathered by PGA officials, unlike most sports where the scoring occurs in one place, where the crowd is entirely assembled. There were dozens of amici lined up to argue press and speech freedom in this case, but the court was deliberate in defining its case as only implicating the Sherman Act. 

That result doesn’t really square with the Second Circuit’s take on what was the nearly identical factual issue, if not the same claim. In NBA v. Motorola, Motorola was finally permitted to resell basketball scores to its subscribers after the court distinguished it from the International News Service ‘hot news‘ doctrine. The only real difference between PGA and NBA, besides the claims brought, is the method by which the scores are gathered.  This seems to be a silly distinction, as some human is always compiling the score at sporting events–the law can’t really hinge on whether the method used to procure the score is difficult, can it?

But while all these cases appear to share a similar bond–a short-sighted and zealous sports event license holder using dubiously applicable means to shut down a competitor–the live-blogging incident rings the scariest, because the competition the NCAA fears is simply news (And what else can they restrict–my telephone call to my mom describing the action before me? And what if a newsworthy event only tangentially related to the sports action arises during the game–do I have to wait until the game ends to report that a spectator was hit with a ball and was rushed to the hospital?)

I suspect the NCAA will get away with this, either because the newspaper is too poor to proceed, or because the NCAA is even right on the law–I don’t think there’s anything that obligates or guides the NCAA or its schools as to whom they may issue or withhold press passes, besides basic civil rights laws and its own best interests. Live-blogging events (not just sports–concerts, political speeches, etc.) are fated to become more common, so I doubt we’ve seen the last of this issue, even if this one doesn’t wind up in court.  And I suspect it’ll really flare up when a consolidated media empire purchases its own live-blogger to compete.  Some already supply them (‘GLOGs’).

And while prior restraint wouldn’t apply where the restrainer is a non-governmental entity, it seems unholy that news could be routinely suppressed in this manner.

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