By Scott Hervey

Just how valuable are baseball statistics? Apparently very valuable. In fact, baseball statistics are so valuable that CBC Distribution and Marketing, which has run the CDM Fantasy Sports leagues since 1992, has decided to sue Major League Baseball and challenge its copyright claim over player statistics. CBC agues that baseball statistics become historical facts as soon as a game is over, and that it shouldn’t have to pay for the right to use them. Major League Baseball claims that intellectual property law makes it illegal for fantasy leagues to commercially exploit the statistical profiles of its players.

Owning the copyright is a work gives the owner quite a monopoly. No one can copy the work, distribute the work, publicly perform the work, or create a second work derived from the copyrighted work without first securing the permission of the copyright owner. This monopoly is well deserved. After all, the copyright owner most likely either worked hard to create the work or paid for someone to create the work.

There is a limit to the protection granted by Federal Copyright laws. There are a number of exceptions within the federal statute, such as fair use. In addition, the very nature of what is protectable limits the reach of copyright protection. The Copyright law generally does not protect facts, regardless how much time, effort and expense went into discovering them. Section 102(b) of the Copyright Act makes this clear; Copyright protection is not accorded to any “discovery, regardless of the form in which it is described.”

While facts themselves are generally not copyrightable, the compilation and arrangement of facts are. This means that the arrangement and presentation of the facts are entitled to protection, but not the underlying data. The reason for this dichotomy lies with the Copyright law’s requirement that a work, in order to be entitled to protection, be “Original.”

Originality requires only that the author independently created the work and that the work possesses at least a minimal degree of creativity. Selection, coordination and arrangement are elements of creativity. Certainly everyone would agree that Picasso’s paintings, Steven Spielberg’s movies, or Tom Clancy’s novels have enough “originality” to warrant copyright protection. However, what about the bland arrangement of names and addresses in a telephone directory or other compilations of factual information; are these works copyrightable?

In Feist Publications, Inc v. World Telephone Services Company, the United States Supreme Court held that an alphabetical telephone directory of all people living in a particular region lacked sufficient originality and, therefore, was not copyrightable. In coming to its conclusion, the court understood the practical implications of its decision. The court stated:

“[This decision] inevitably means that the copyright of a factual compilation is thin, not withstanding a valid copyright, a subsequent compiler remains free to use the facts compiled in another’s publication to aid in preparing a competing work, so long as the competing work does not feature the same selection and arrangement.”

Not all facts are just facts. On a number of occasions the courts have held that certain facts are copyrightable due to the presence of originality and creative thought. CDN v. Kapes dealt with the defendant’s alleged infringement of plaintiff’s coin price guide. Kapes, who published a retail coin price guide. In order to determine the retail price, Kapes had to input the coin’s wholesale price that he obtained from a wholesale coin price guide published by the plaintiff. Kapes acknowledged using CDN’s wholesale price guide for the purpose of determining a coin’s retail price. CDN alleged that Kapes infringed its copyright by using the wholesale prices found in its price guide as a baseline to arrive at retail prices. The dispositive issue in CDN’s copyright infringement case ended up being whether the prices listed in CDN’s wholesale coin price guide were copyrightable.

The court found that the wholesale prices CDN established for various coins were sufficiently original, and therefore deserving of copyright protection. Comparing the matter to Feist, the District Court found that the prices in CDN’s guidelines were not facts, but were “wholly the product of CDN’s creativity.” The court noted that CDN used its expertise and judgment to determine how a multitude of variables and factors would effect the bid and ask price for certain coins. It was this creative process, the court continued, which ultimately gives rise to CDN’s “best guess” as to what the current bid and ask prices should be. The court made clear that it was not the “sweat of the brow” which created a copyrightable work; rather, it was the originality and creativity which CDN engaged in to come up with the prices. If CDN did nothing more than discover the prices paid by dealers in transactions throughout the country, the prices listed in CDN’s wholesale price guide would not be copyrightable. However, because the prices listed were not actual prices paid, but CDN’s best estimate of the fair value of the coins, CDN employed a process that satisfied the “minimal degree of creativity” required for copyright protection.

Are the player statistics published by Major League Baseball protectable under Copyright law? The court hearing CBC’s suit will probably have to dig deep into the means and methods Major League Baseball uses to create the statistics in order to determine whether the statistics are created using the required level of creativity.

Copyright law may not be the only means Major League Baseball has for protecting player statistics. In January 2005 MLB announced that it had entered a $50 million agreement with the players’ association for the exclusive right to license players’ likeness. The statutory right of publicity, owned by each player and subsequently licensed to MLB may present another ground for defending its claimed control over player statistics. We will look at that in the next inning.

Scott Hervey is a shareholder with Weintraub Genshlea Chediak Tobin & Tobin and manages the firm’s trademark and copyright practice. For more interesting articles on intellectual property law, visit Weintraub’s IP weblog at