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.

fantasy names and statistics are free

I forget whether I commented on this case here before but I’m pleased at its end. A while back MLB sued the CBC fantasy sports empire over the right to use the baseball players’ names, claiming that its use was violation of the players’ right of publicity. The Eighth Circuit disagreed (pdf), affirming a lower court’s decision 2-1, saying that “It would be strange law that a person would not have a First Amendment right to use information that is available to everyone.” MLB sought to make a distinction between use of the names and statistics by the press and by a commercial entity (CBC).

Complicating the constitutional issue somewhat were a series of contracts presuming that the players’ names were indeed valuable: The MLBPA licensed to MLB the rights to their names for $50m and MLB in turn licensed to various entities for $2m a pop. The sole dissenting judge agreed with the majority’s free speech rationale, but argued that it should be held to the terms of its agreement with MLB, since the status of those rights were uncertain at the time it entered into the agreement.

While the opinion’s reach is limited to the Eighth Circuit, it seems unlikely that MLB–or any other pro sports league (most who were amici in the MLB case)–will litigate this issue elsewhere, having been shut down on the main issue by four judges total. Then again, a whole lot of contracts for a whole lot of money just became moot, so who knows what’ll happen–perhaps litigation to hash out the preexisting contracts. But the upshot is a breath of fresh air–the names and statistics produced by professional sports figures can no longer be owned and licensed because they belong to everyone.
ars technica story with deeper background on the case here.

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