A Triple Play for the Public Domain: Delaware Lottery to Motorola to C.B.C.

Abstract

A trilogy of cases decided by federal courts over the past 30 years correctly holds that game scores, real-time game accounts, and player statistics are in the public domain. There is a consistent thread in these federal cases, based on sound legal, public policy and economic analysis, which justifies judicial rejection of state law claims by sports leagues and players asserting exclusive rights to this purely factual information. The creation of a collateral product incorporating merely public domain information about a sports event or athletes' performances, including fantasy league games, is not (and should not be) infringing absent copyright or patent infringement in violation of federal law, or a likelihood of consumer confusion regarding its origin, endorsement, or sponsorship in violation of the Lanham Act, which provides a federal statutory right to prevent trademark infringement and unfair competition. These courts implicitly recognize the need for a uniform national standard to determine the nature and scope of one's rights to use this nationally distributed and available public information for commercial purposes without authorization.

Keywords: sports, statistics, scores,public domain, lanham act, likelihood of confusion, infringement, unfair competition