Full opinion text
MEMORANDUM OPINION MEDLER, United States Magistrate Judge. Before the court are the Motion for Summary Judgment filed by Interve-nor/Counter Claimant Major League Baseball Players Association (the “Players’ Association”), Doc. 44, the Motions for Summary Judgment filed by Plaintiff/Counter Defendant C.B.C. Distribution and Marketing, Inc. (“CBC”), Doc. 72, Doe. 107, and the Motion for Summary Judgment filed by Defendant/Counter Claimant Major League Baseball Advanced Media, L.P., (“Advanced Media”), Doc. 87. The Fantasy Sports Trade Association has filed an Amicus Brief. Doc. 76. The parties have filed Responses and Replies to the various Motions for Summary Judgment. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). Doc. 13. I. BACKGROUND AND UNDISPUTED FACTS The Players’ Association is the bargaining representative for Major League baseball players and is comprised of almost all persons who are employed as Major League baseball players. Advanced Media was formed in 2000 by various owners of Major League Baseball teams to serve as the interactive media and internet arm of Major League Baseball. As part of its responsibilities Advanced Media is in charge of running Major League Baseball’s internet site, MLB.com. CBC, which uses the trade name CDM Fantasy Sports, is a Missouri corporation whose primary offices are located in St. Louis, Missouri. CBC markets, distributes and sells fantasy sports products, including fantasy baseball games accessible over the Internet. To date, the business of fantasy sports games is a multimillion dollar industry in the United States. CBC offers its fantasy sports products via telephone, mail, e-mail, and the Internet through its website, www. CDMsports.com. CBC currently offers eleven fantasy baseball games, two mid-season fantasy baseball games, and one fantasy baseball playoff game. CBC provides lists of Major League baseball players for selection by participants in its games. Game participants pay fees to CBC to play its games and pay additional amounts to trade players. Prior to the start of the professional baseball season participants form their teams by “drafting” players from various Major League baseball teams. Participants or “owners” compete against other fantasy owners who have drafted their own teams. The success of one’s fantasy team over the course of the baseball season is dependent on one’s chosen players’ actual performances on their respective actual teams. In addition to fantasy sports games, CBC’s website provides up-to-date information on each player to assist game participants in selecting players for and trading players on their fantasy teams. This information includes information which is typically found in box scores in newspapers such as players’ batting averages, at bats, hits, runs, doubles, triples, home runs, etc. See CBC’s Ex. 16E, attached hereto. CBC also hires journalists to write stories relevant to fantasy owners, such as the latest injury reports, player profiles, and player reports. CBC entered into license agreements with the Players’ Association covering the period from July 1, 1995, through December 31, 2004 (the “1995 and 2002 License Agreements” or the “Agreements”). Doc. 44, Ex. B 1 and B2. The 2002 License Agreement stated that it “represents the entire understanding between the parties and supercedes all previous representations.” The court, therefore, need only address the terms of the 2002 License Agreement. The 2002 License Agreement stated that the Players’ Association was acting on behalf of all the active baseball players of the National League and the American League who entered into a Commercial Authorization Agreement with the Players’ Association; that the Players’ Association in this capacity had the right to negotiate the Agreements and to grant rights in and to the logo, name, and symbol of the Players’ Association, identified as the Trademarks, and “the names, nicknames, likenesses, signatures, pictures, playing records, and/or biographical data of each player,” identified as the “Players’ Rights”; and that CBC desired to use the “Rights and/or the Trademarks on or in association with the manufacture, offering for sale, sale, advertising, promotion, and distribution of certain products(the ‘Licensed Products’).” The 2002 License Agreement included a no-challenge provision which provided that “during any License Period ... [CBC] will not dispute or attack the title or any rights of Players’ Association in and to the Rights and/or the Trademarks or the validity of the license granted.” The 2002 License Agreement further stated that upon termination CBC would have no right “... to use in any way the Rights, the Trademarks, or any Promotional Material relating to the Licensed Products” and that upon expiration or termination of the License Agreement, CBC shall “refrain from further use of the Rights and/or the Trademarks or any further reference to them, either directly or indirectly .... ” Between 2001 and January 2004, Advanced Media offered fantasy baseball games on MLB.com without obtaining a license and without obtaining permission from the Players’ Association. In 2005, Advanced Media entered into an agreement (the “Advanced Media License Agreement”) with the Players’ Association whereby the Players’ Association granted to Advanced Media a license to use “Rights and Trademarks for exploitation via all interactive media,” with some exclusions. On or around January 19, 2005, Advanced Media executive George Kliavkoff sent a request for proposals (the “RFP”) to various fantasy game operators and providers including CBC. The RFP invited CBC to submit a proposal under which it would enter into a license agreement with Advanced Media and participate in Advanced Media’s fantasy baseball licensing program for the 2005 season. On February 4, 2005, Advanced Media offered CBC a license to promote Advanced Media’s fantasy baseball games on CBC’s website in exchange for a percentage share of all related revenue. Doc. 74, Ex. 4N. In particular, Advanced Media stated that it was offering “a full suite of MLB fantasy games” and that CBC could use its “online presence and customer relationships, in conjunction with [Major League Baseball’s] marks, to promote the MLB.com fantasy games to [CBC’s] customers in exchange for a 10% revenue share from MLB.com on all related revenue.” As such, Advanced Media was not offering CBC “a license to promote its own MLB fantasy game for the 2005 season.” Doc. 74, Ex. 4N. On February 7, 2005, CBC filed the Complaint for declaratory judgment in the matter under consideration in which it alleges that it has a reasonable apprehension that it will be sued by Advanced Media if it continues to operate its fantasy baseball games. The Complaint further alleges that Advanced Media has maintained that it has exclusive ownership of statistics associated with players’ names and that it can, therefore, preclude all fantasy sports league providers from using this statistical information to provide fantasy baseball games to the consuming public. CBC also seeks injunctive relief asking that Advanced Media and its affiliates be enjoined from interfering with CBC’s business related to sports fantasy teams. Doc. 1. Advanced Media and the Players’ Association, the latter of which intervened in this matter, assert counterclaims, including a contract violation based on the 2002 License Agreement between the Players’ Association and CBC. Advanced Media and the Players’ Association further assert as a counterclaim that CBC violated the players’ right of publicity based on CBC’s exploiting the rights of players including their names, nicknames, likenesses, signatures, jersey numbers, pictures, playing records and biographical data (the “Player Rights”) via all interactive media with respect to fantasy baseball games. Advanced Media and the Players’ Association also seek injunctive relief and exemplary and punitive damages. Doc. 7. Because the claims and counterclaims asserted in the parties’ pleadings and arguments in some, but not all, of the summary judgment briefs are considerably broader than the use of players’ names and statistics, the court requested a teleconference with the parties to clarify the precise scope of the matters at issue. On the record, in a teleconference of May 24, 2006, CBC clarified that when it speaks of statistics it is referring to players’ names and performance records, also referenced as players’ playing records or players’ records; “player[s’] names plus their performance records are the only thing[s] at issue in this litigation.” Doc. 129 at 6, 9. Additionally, the Players’ Association and Advanced Media clarified that they are not claiming that CBC cannot use players’ playing records or biographical data; that they are challenging CBC’s use of players’ names in conjunction with its fantasy baseball games; that they are claiming that the identities of players are represented by their names; that they are concerned with protecting the players’ names; and that they are claiming that CBC uses players’ names in its fantasy baseball games in violation of the players’ right of publicity. Doc. 129 at 8, 13. Also, in the teleconference CBC stated that its position is that players’ names and playing records, as used in its fantasy baseball games, are preempted by copyright law; that CBC’s use of players’ names and playing records in its fantasy baseball games does not violate the players’ claimed right of publicity; and that even assuming, arguendo, that CBC’s use of players’ names and playing records violates the players’ right of publicity, the First Amendment controls. Doc. 129 at 6. Thus, the only remaining issues before this court are whether the players have a right of publicity in their names and playing records as used in CBC’s fantasy games; whether, if the players have such a right, CBC has, and is, violating the players’ claimed right of publicity; whether, if the players have a right of publicity and if this right has been violated by CBC, such a violation is preempted by copyright law; whether, if the players have a right of publicity which has been violated by CBC, the First Amendment applies and, if so, whether it takes precedence over the players’ claimed right of publicity; and whether CBC has breached the 2002 Licensing Agreement. II. STANDARD FOR SUMMARY JUDGMENT The court may grant a motion for summary judgment if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law determines which facts are critical and which are irrelevant. Only disputes over facts that might affect the outcome will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 411 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Summary judgment is not proper if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.See also Fenney v. Dakota, Minn. & E.R.R. Co., 327 F.3d 707, 711 (8th Cir.2003)(holding that an issue is genuine “if the evidence is sufficient to allow a reasonable jury to return a verdict for the non-moving party”). A moving party always bears the burden of informing the court of the basis of its motion. Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Once the moving party discharges this burden, the nonmoving party must set forth specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the “mere existence of some alleged factual dispute.” Fed. R.Civ.P. 56(e); Anderson, 411 U.S. at 247, 106 S.Ct. 2505. The nonmoving party may not rest upon mere allegations or denials of his pleading. Anderson, 477 U.S. at 256, 106 S.Ct. 2505. In passing on a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party and all justifiable inferences are to be drawn in its favor. Id. at 255, 106 S.Ct. 2505; Raschick v. Prudent Supply, Inc., 830 F.2d 1497, 1499 (8th Cir.1987). The court’s function is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson, 411 U.S. at 249, 106 S.Ct. 2505. However, “[t]he mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient.” Id. at 252, 106 S.Ct. 2505. With these principles in mind, the court turns to an analysis of the pending motions for summary judgment. III. APPLICABLE LAW AND DISCUSSION The court will first determine whether the undisputed facts of this case establish that CBC has violated the players’ claimed right of publicity. Only if that right is violated need the court consider whether under the facts of this case federal copyright law preempts the right of publicity and/or whether the First Amendment trumps the right of publicity. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 161, 109 S.Ct. 971, 103 L.Ed.2d 118 (1989) (holding that state laws must yield to federal law when the former “pose[s] a substantial threat to [federal law’s] ability to accomplish its mission”). Nevertheless, the court will discuss each of the issues raised by the parties. A. Right of Publicity: The Players’ Association and Advanced Media both contend that CBC has violated the players’ right of publicity, which right is a creature of state and common law. See e.g., Zacchini v. Scripps-Howard Broadcasting, Co., 433 U.S. 562, 566, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977); Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo.2003) (en banc), cert denied, 540 U.S. 1106, 124 S.Ct. 1058, 157 L.Ed.2d 892 (2004), appeal after remand, 2006 WL 1677856, — 5.W.3d-(Mo.App.2006); Gionfriddo v. Major League Baseball, 94 Ca.App.4th 400, 408, 114 Cal.Rptr.2d 307 (Cal.Ct.App. 2001). The right of publicity is recognized by statute and/or common law in many states. J. Thomas McCarthy, The Right of Publicity and Privacy § 63 (2d ed.2005). Among those states recognizing the right of publicity is Missouri. TCI, 110 S.W.3d at 368. A fairly recent concept, according to the Sixth Circuit in ETW Corporation v. Jireh Publishing, Inc., 332 F.3d 915, 929 (6th Cir.2003), this right “was first recognized in Haelan Laboratories, Inc. v. Topps Chewing Gum. Inc., 202 F.2d 866 (2nd Cir.1953), where the Second Circuit held that New York’s common law protected a baseball player’s right in the publicity value of his photograph, and, in the process, coined the phrase ‘right of publicity’ as the name of this right.” Subsequently, in Zacchini, 433 U.S. at 573, 97 S.Ct. 2849, where a performer in a “human cannonball” act sought to recover damages from a television broadcast of his entire performance, the Supreme Court recognized that the right of publicity protects the proprietary interest of an individual to “reap the reward of his endeavors.” The right of publicity is described in Section 46 of the Restatement (Third) of Unfair Competition (2005), Appropriation of the Commercial Value of a Person’s Identity: The Right of Publicity. This Restatement provision states that “[o]ne who appropriates the commercial value of a person’s identity by using without consent the person’s name, likeness, or other indicia of identity for purposes of trade is subject to liability....” Relying on the Restatement, the Missouri Supreme Court held in TCI, 110 S.W.3d at 369, that “the elements of a right of publicity action include: (1) That defendant used plaintiffs name as a symbol of his identity (2) without consent (3) and with the intent to obtain a commercial advantage.” See also Gionfriddo, 94 Cal.App.4th at 409,114 Cal.Rptr.2d 307 (“The elements of [the tort of the right of publicity], at common law, are: ‘(1) the defendant’s use of the plaintiffs identity; (2) the appropriation of plaintiffs name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.’ ”). To prove a violation of one’s right of publicity a plaintiff must establish that the defendant commercially exploited the plaintiffs identity without the plaintiffs consent to obtain a commercial advantage. Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir.1983). Thus, the court will proceed to determine whether the elements of the right of publicity are present in the matter under consideration. 1. Commercial Advantage Element of the Right of Publicity: It is undisputed that CBC is using the players’ names and playing records without the consent of the players. As such, the court must consider whether CBC’s use of players’ names in conjunction with their playing records in its fantasy baseball games utilizes the players’ names as a symbol of their identities to obtain a commercial advantage and, if so, whether there is resulting injury. In regard to the commercial advantage element of the right of publicity, “it is irrelevant whether [a] defendant intended to injure the plaintiff.” TCI, 110 S.W.3d at 371 (citing McCarthy, Rights of Publicity, § 3.28) (emphasis added). The intent must be to obtain a commercial advantage. Id.See also Carson, 698 F.2d at 837 (“[U]nder the existing authorities, a celebrity’s legal right of publicity is invaded whenever his identity is intentionally appropriated for commercial purposes.”). Evidence which shows that a defendant intended to create an impression that a plaintiff is associated with the defendant’s product “alone is sufficient to establish the commercial advantage element in a right of publicity action.” TCI, 110 S;W.3d at 371 (citations omitted). Additionally, using a plaintiffs name “to attract attention to [a] product” is evidence supporting a conclusion that a defendant sought to obtain a commercial advantage. Id. at 372. For example, in Henley v. Dillard Department Stores, where it was uncontroverted that the defendant intended to use the plaintiffs name to make an advertisement “more interesting,” the court found the requisite intent to use for commercial advantage. 46 F.Supp.2d 587, 592-93 (N.D.Tex.1999) (“[The defendant] intended for [potential customers] to associate the expression ‘Don’s henley’ with the Plaintiff Don Henley. Furthermore, ... the ad’s designer, admitted that she believed the expression Don’s henley would catch the consumers’ eye because of its similarity to the name ‘Don Henley.’ ”). See also Abdul-Jabbar v. Gen. Motors, 85 F.3d 407, 415-16 (9th Cir.1996) (quoting Eastwood v. Superior Court for Los Angeles County, 149 Cal.App.3d 409, 198 Cal.Rptr. 342, 349 (1983)) (finding a violation of the right of publicity where the defendant used “the plaintiffs birth name [to] attract[] television viewers’ attention.”). Unlike cases where the commercial advantage element of the right of publicity has been found, there is nothing about CBC’s fantasy games which suggests that any Major League baseball player is associated with CBC’s games or that any player endorses or sponsors the games in any way. The use of names and playing records of Major League baseball players in CBC’s games, moreover, is not intended to attract customers away from any other fantasy game provider because all fantasy game providers necessarily use names and playing records. Indeed, there is no evidence to create a triable issue as to whether CBC intended to create an impression that Major League baseball players are associated with its fantasy baseball games or as to whether a reasonable person would be under the impression that the baseball players are associated with CBC’s fantasy games any more than the players are associated with a newspaper boxscore. As such, there is no triable issue of fact as to whether CBC uses Major League baseball players’ names in its fantasy baseball games with the intent of obtaining a commercial advantage. In regard to the commercial advantage element of the right to publicity and relying on Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458 (1967), the Players’ Association and Advanced Media seek to draw analogy of the matter under consideration to use of a famous person’s picture in a board game. As do the baseball players in the matter under consideration, the golfers in Palmer contended that “the use of their respective names reduce[d] their ability to obtain satisfactory commercial affiliation by licensing agreements.” Id. at 459. Upon finding in favor of the golfers, however, the court in Palmer relied upon the defendant’s use of the golfers’ pictures and cited cases wherein recovery was permitted for an invasion of privacy where a picture of a famous person was used. Id. at 461 (“Where defendant sold lockets with removable photographs of plaintiff in each one, it was held that plaintiff-actress could recover for this invasion of her privacy.”) (emphasis added) (citing Lane v. F.W. Woolworth Co., 171 Misc. 66, 11 N.Y.S.2d 199 (S.Ct.1939)); (“Where defendant inserted pictures of plaintiffs, widely known baseball players, in containers of popcorn and chewing gum, recovery was permitted.”) (emphasis added) (citing Jansen v. Hilo Packing Co., 202 Misc. 900, 118 N.Y.S.2d 162 (S.Ct.1952)); (“Where defendant inserted a picture of a motion picture actress using a certain camera, with an inscription beneath it giving her name, in a manual for the use of such camera, she was permitted a recovery.”) (emphasis added) (citing Selsman v. Universal Photo Books, Inc., 18 A.D.2d 151, 238 N.Y.S.2d 686 (App.Div.1963)). To the extent that Palmer involved the unauthorized use of professional golfers’ names and playing records in the defendant’s board games, the court acknowledges that Palmer has certain factual similarities to the matter under consideration, but with the critical exception that the defendant in Palmer used golfers’ pictures; there is no allegation in the matter under consideration that CBC uses baseball players’ pictures in conjunction with its fantasy baseball games; rather, the contention is that CBC uses players names in conjunction with their playing records. Indeed, cases, including Palmer, which address unauthorized use of a famous person’s picture are distinguishable from CBC’s use of baseball players’ names and playing records and, therefore, do not suggest that CBC is using players’ names and/or playing records to obtain a commercial advantage. Unlike cases where there was an appropriation of a likeness to create the impression that a famous person endorsed a product, CBC’s use of players’ names in no way creates an impression that players endorse CBC’s fantasy games. See e.g., Abdul-Jabbar, 85 F.3d 407 (holding that use of a basketball star’s former name in conjunction with his likeness could be construed as his endorsement of a product); Cardtoons, L.C. v. Major League Baseball Players’ Ass’n, 95 F.3d 959, 968 (10th Cir.1996) (holding that the defendant’s use of players’ likenesses in parody trading cards violated the right of publicity); Toney v. L’Oreal USA 406 F.3d 905, 910 (7th Cir.2005) (holding that the defendant’s use of a model’s likeness in connection with the packaging and promotion of its hair care product violated the right of publicity); Newcombe v. Adolf Coors Co., 157 F.3d 686, 692-93 (9th Cir. 1998) (finding a “triable issue of fact” as to whether the plaintiff was “readily identifiable as the pitcher in [an] advertisement” and “whether the advertisement made use of [the plaintiffs] likeness ”). Most significantly Palmer was decided in 1967 and is inconsistent with more recent case authority including the Supreme Court’s decision in Zacchini Palmer does not accurately reflect the concept of the right of publicity as articulated by the courts of various jurisdictions including the Supreme Court and, therefore, is not controlling in this matter. In this regard, the court in Palmer, 232 A.2d. at 460, acknowledged that, at the time of the decision, recognition of the right of privacy itself was a relatively new concept. The court finds, therefore, for the reasons fully set forth above that the undisputed facts establish that the commercial advantage element of the right of publicity is not met in the matter under consideration. 2. Identity Element of the Right of Publicity: It remains to be determined in regard to the elements of the right of publicity whether CBC has, and is, using the players’ names “as a symbol of their identity.” One’s persona is most significant in a right of publicity cause of action. Carson, 698 F.2d at 835 (“The right of publicity has developed to protect the commercial interest of celebrities in their identities.”) (emphasis added); Rosemont Enterprises, Inc. v. Urban Sys., Inc., 72 Misc.2d 788, 340 N.Y.S.2d 144, 146 (Sup.Ct.1973) (“There is no question but that a celebrity has a legitimate proprietary interest in his public personality.”) (emphasis added); Ali v. Playgirl, Inc., 447 F.Supp. 723, 728 (S.D.N.Y.1978) (“The distinctive aspect of the common law right of publicity is that it ... protects [a prominent person’s] proprietary interest in the profitability of his public reputation or ‘persona.’ ”)(emphasis added). To resolve the issue of whether a public personality’s name is used as a symbol of his or her identity, it is appropriate to consider “ ‘the nature and extent of the identifying characteristics used by the defendant, the defendant’s intent, the fame of the plaintiff, evidence of actual identification made by third persons, and surveys or other evidence indicating the perceptions of the audience.’ ” TCI, 110 S.W.3d at 370 (quoting Restatement (Third) of Unfair Competition, § 46 cmt. d.). For example, in TCI, upon determining whether the defendant used, in a comic book, plaintiff Tony Twist’s name as a symbol of his identity, the court in TCI considered the real Tony Twist’s fame as a star in the National Hockey League, the nature and extent of the identifying characteristics used by the defendant, and their similarity to those characteristics in the public persona of the real Tony Twist including the “common persona of a tough-guy ‘enforcer.’ ” Id. The court also considered that it was the intent of the defendant to draw attention to those similarities. As such, the court in TCI concluded that “the evidence supported a finding that [the defendants] used Twist’s name and identity ‘with the intent to obtain a commercial advantage.’ ” Id. at 375 (emphasis added). Thus, upon determining whether there is a violation of the right of publicity in the matter under consideration, how players’ names are used is significant rather than the mere fact that they are used. Id. at 369. Indeed, not all uses of another’s name are tortious; mere use of a name as a name is not tortious. Id. Rather, a name must be used as a symbol of the plaintiffs identity in a right of publicity action. Id. See also Carson, 698 F.2d at 835 (“If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his ‘name or likeness’ is used. Carson’s identity may be exploited even if his name, John W. Carson, or his picture is not used.”). As such, CBC’s mere use of Major League baseball players’ names in conjunction with their playing records does not establish a violation of the players’ right of publicity. CBC’s use of the baseball players’ names and playing records in the circumstances of this case, moreover, does not involve the character, personality, reputation, or physical appearance of the players; it simply involves historical facts about the baseball players such as their batting averages, home runs, doubles, triples, etc. CBC’s use of players’ names in conjunction with their playing records, therefore, does not involve the persona or identity of any player. See id.; TCI, 110 S.W.3d at 369-70. Indeed, under the facts of this case there is no triable issue as to whether the persona or identity element of the right of publicity is present. For the reasons fully set forth above, the court concludes that the undisputed facts establish that CBC does not use in its fantasy baseball games Major League baseball players’ names separately or in conjunction with their playing records as a symbol of their identity; that CBC does not use players’ names separately or in conjunction with their playing records with the intent to obtain a commercial advantage; and that, therefore, the elements of the right of publicity are not present in the matter under consideration. See Zacchini, 433 U.S. at 573, 97 S.Ct. 2849; TCI, 110 S.W.3d at 368-69; Gionfriddo, 94 Cal.App.4th at 413, 114 Cal.Rptr.2d 307. 3. Policy Considerations Applicable to the Right of Publicity: Next the court will address policy considerations behind the right of publicity to determine whether CBC’s use of players’ names in conjunction with their playing records in its fantasy baseball games contravenes these policies. The Restatement (Third) of Unfair Competition § 46, Cmt. c (2005), states that the justification for the right of publicity includes: (1) pro-tection of “an individual’s interest in personal dignity and autonomy”; (2) “se-cur[ing] for plaintiffs the commercial value of their fame”; (3) “preventing] the unjust enrichment of others seeking to appropriate” the commercial value of plaintiffs’ fame for themselves; (4) “preventing harmful or excessive commercial use that may dilute the value of [a person’s] identity”; and (5) “affording] protection against false suggestions or endorsement or sponsorship.” “The right to publicity protects the ability of public personae to control the types of publicity that they receive. The right to publicity protects pecuniary, not emotional, interests.” Ventura v. Titan Sports, Inc., 65 F.3d 725, 730 (8th Cir. 1995) (citing Uhlaender v. Henricksen, 316 F.Supp. 1277, 1280-81 (D.Minn.1970)). See also J. Thomas McCarthy, The Rights of Publicity and Privacy § 1:4 at 3 (2d ed. 2005) (“[T]he right of publicity is the inherent right of every human being to control the commercial use of his or her identity.”). The right of publicity “protect[s] a person from losing the benefit of their [sic] work in creating a publicly recognizable persona.’ ” TCI, 110 S.W.3d at 368 (quoting Bear Foot, Inc. v. Chandler, 965 S.W.2d 386, 389 CMo.Ct.App.1998)). “ ‘[T]he right of publicity protects against commercial loss caused by appropriation of an individual’s [identity] for commercial exploitation.’ ” Id. (quoting 4 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 28.6 (4th ed.2003)). This right protects a public figure’s right to receive pecuniary gain for the commercial use of his or her likeness. Haelan Labs., 202 F.2d at 868 (“[I]t is common knowledge that many prominent persons (especially actors and ball-players), far from having their feelings bruised through public exposure of their likenesses, would feel sorely deprived if they no longer received money for authorizing advertisements, popularizing their countenances, displayed in newspapers, magazines, buses, trains and subways.”). Upon finding in favor of the performer/plaintiff the Supreme Court concluded in Zacchini, in regard to the purpose of the right of publicity, that: “The rationale for (protecting the right of publicity) is the straightforward one of preventing unjust enrichment by the theft of good will. No social purpose is served by having the defendant get free some aspect of [the performer] that would have market value and for which he would normally pay.” (citation omitted). Moreover, the broadcast of [the performer’s] entire performance, unlike the unauthorized use of another’s name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of [the performer’s] ability to earn a living as an entertainer. 433 U.S. at 576, 97 S.Ct. 2849 (emphasis added). See also Carson, 698 F.2d at 837 (“Vindication of the right [of publicity] will also tend to prevent unjust enrichment by persons ... who seek commercially to exploit the identity of celebrities without their consent.”). All of the above the policy considerations are aimed at preventing harmful or excessive commercial use of one’s celebrity in a manner which could dilute the value of a person’s identity. See Zacchini, 433 U.S. at 576, 97 S.Ct. 2849; Ventura, 65 F.3d at 730; Carson, 698 F.2d at 837; TCI, 110 S.W.3d at 368. However, CBC’s use of Major League baseball players’ names and playing records in fantasy baseball games does not go to the heart of the players’ ability to earn a living as baseball players; the baseball players earn a living playing baseball and endorsing products; they do not earn a living by the publication of their playing records. See Zacchini 433 U.S. at 576, 97 S.Ct. 2849. Moreover, CBC’s use of Major League baseball players’ names and playing records does not give CBC something free for which it would otherwise be required to pay; players’ records are readily available in the public domain. See id. In fact, case law suggests that CBC’s use of the names and playing records of Major League baseball players in the circumstances of this case actually enhances the marketability of the players. The plaintiffs in Gionfriddo, 94 Cal.App.4th at 413, 114 Cal.Rptr.2d 307, who were baseball players themselves, argued that the baseball clubs used players’ “information ... to increase interest in baseball, with the belief that this would increase attendance at games.” (emphasis added). Additionally, the court concluded in Gionfriddo that “the challenged uses [which] involve[d] statements of historical fact, descriptions of these facts or video depictions of them,” would “likely” “enhanee[]” the players’ marketability. Id. at 415, 114 Cal.Rptr.2d 307. As such, it cannot be said that CBC’s use of the Major League baseball players’ names and playing records in the circumstances of this case deprives the players of their proprietary interest in reaping the reward of their endeavors. See Zacchini, 433 U.S. at 573, 575-76, 97 S.Ct. 2849. The court finds, therefore, for the reasons fully set forth above that the undisputed facts establish that CBC’s use of players’ names and/or playing records in its fantasy baseball games does not contravene the policies behind the right of publicity. In summary, the court finds that the undisputed facts establish that CBC does not use in its fantasy baseball games Major League baseball players’ names separately or in conjunction with their playing records as a symbol of their identity; that CBC does not use players’ names separately or in conjunction with their playing records with the intent to obtain a commercial advantage; that CBC’s use of players’ names separately or in conjunction with their playing records does not contravene the policy behind the right of publicity; and that, therefore, CBC has not and is not - violating the players’ claimed right of publicity. See id. at 573, 97 S.Ct. 2849; TCI, 110 S.W.3d at 368-69; Gionfriddo, 94 Cal.App.4th at 409, 114 Cal.Rptr.2d 307. However, in order to address all the issues raised by the parties, the court will assume, arguendo, that the right of publicity of the Major League baseball players is violated under the circumstances of the matter under consideration. The court will, therefore, consider whether the First Amendment prevails over the players’ claimed right of publicity and whether copyright law preempts this right. B. The First Amendment: CBC argues, in the event it has violated the players’ right of publicity, that speech is involved in its fantasy games; that this speech does not differ from raw statistics published in newspapers; that the speech involved in its fantasy games is expression which is protected under the First Amendment; and that the First Amendment trumps the right of publicity in the circumstances of this case. The Players’ Association and Advanced Media argue that CBC’s games do not involve speech or the expression of ideas; that what is at issue in this matter is not speech; and that, therefore, the First Amendment does not apply. 1. Applicability of the First Amendment to the Right of Publicity: The court will first consider whether the First Amendment right of expression is applicable to CBC’s fantasy baseball games. In Zacchini, 433 U.S. at 567, 97 S.Ct. 2849, the Supreme Court recognized that First Amendment principles can be applicable where the right of publicity is claimed. As such, it must be determined whether the First Amendment is applicable in the circumstances of the matter before this court. a. Application of the First Amendment to Less Traditional Forms of Expression: Speech which does not use “a traditional medium of expression” does not receive less protection that more traditional means of speech. Cardtoons, 95 F.3d at 969. As such, the First Amendment has been applied to flag burning, nude dancing, and wearing a jacket with obscenities. Id. (citations omitted). Moreover, the fact that expression appears in a novel medium does not preclude its being subject to First Amendment protection. Interactive Digital Software Association v. St. Louis County, 329 F.3d 954, 957 (8th Cir.2003). Thus, to the extent that it can be said that CBC’s use of the names and playing records of Major League baseball players on a website is not traditional, this non-traditional expression is not precluded from First Amendment protection. b. Application of the First Amendment to Factual Data and History: Courts have found that First Amendment freedom of expression is applicable in cases where the subject matter at issue involved factual data and historical facts. For example, in Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307, the court concluded that the “precise information conveyed ... consisted] of factual data concerning [baseball] players [and] their performance statistics” and that, as such the First Amendment was applicable. The California court in Gionfriddo characterized the information conveyed by the defendant as “mere bits of baseball’s history.” Id. Significantly, the California court further held that the First Amendment protects “recitations of [baseball] players’ accomplishments. ‘The freedom of the press is constitutionally guaranteed, and the publication of daily news is an acceptable and necessary function in the life of the community.’ (citations omitted). ‘Certainly, the accomplishments ... of those who have achieved a marked reputation or notoriety by appearing before the public such as ... professional athletes ... may legitimately be mentioned and discussed in print or on radio and television.’ ” Id. (citation omitted) (emphasis in original). See also Cardtoons, 95 F.3d at 968 (holding that because the defendant’s parody baseball cards disseminated information the trading cards were entitled to full First Amendment protection). Indeed, the manner in which CBC uses the names and playing records of Major League Baseball players in the context of its fantasy baseball games represents the accomplishments of Major League baseball players. The names and playing records of the baseball players as used by CBC are, in fact, “bits of baseball history” which educate the public about baseball. Most importantly, the statistical information about Major League baseball players, including their hits, runs, doubles, etc., which CBC disseminates, represents historical facts about baseball players. See CBC’s Ex. 16E, attached hereto; Cardtoons, 95 F.3d at 969, Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. c. Application of the First Amendment in the Context of Profit: A defendant’s making a profit does not preclude its receiving First Amendment protection. Time Inc. v. Hill, 385 U.S. 374, 396-97, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967) (“ ‘That books, newspapers, and magazines are published and sold for profit does not prevent them from being a form of expression whose liberty is safeguarded by the First Amendment.’ ”) (citations omitted). See also ETW, 332 F.3d at 924 (“Speech is protected even though it is carried in a form that is sold for profit.”) (citations omitted) and (“The fact that expressive materials are sold does not diminish the degree of protection to which they are entitled under the First Amendment”) (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 756 n. 5,108 S.Ct. 2138, 100 L.Ed.2d 771 (1988)). The court finds, therefore, that CBC’s deriving a profit from its use of the names and playing records of Major League baseball players in its fantasy baseball games does not preclude such use from having First Amendment protection. d. Application of the First Amendment in the Context of Expression that Entertains: The First Amendment has been applied in the context of the right of publicity where the expression at issue entertains. Cardtoons, 95 F.3d at 969; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. This rationale is applied because “the public interest is not limited to current events; the public is also entitled to be informed and entertained about [] history.” Id. (citation omitted) (emphasis added). Indeed, “entertainment itself can be important news”; “[entertainment features receive the same constitutional protection as factual news reports.” Id. (citing Zacchini, 433 U.S. at 578, 97 S.Ct. 2849) (other citations omitted). The fact that the social commentary is humorous, rather than serious, does not preclude First Amendment protection. Cardtoons, 95 F.3d at 969 (“Speech that entertains, like speech that informs, is protected under the First Amendment because ‘[t]he line between the informing and the entertaining is too' elusive for the protection of that basic right.’ ”) (quoting Winters v. New York, 333 U.S. 507, 510, 68 S.Ct. 665, 92 L.Ed. 840 (1948)) and (citing Zacchini, 433 U.S. at 578, 97 S.Ct. 2849). Additionally, “ ‘[n]o suggestion can be found in the Constitution that the freedom there guaranteed for speech and the press bears an inverse ratio to the ... importance of the ideas seeking expression.’ ” Time, 385 U.S. at 388, 87 S.Ct. 534 (quoting Bridges v. California, 314 U.S. 252, 269, 62 S.Ct. 190, 86 L.Ed. 192 (1941)). Clearly, CBC’s use of the names and playing records of Major League baseball players is meant to entertain game participants and persons using CBC’s website. The court finds that this characterization, however, does not preclude CBC’s use of players’ names and playing records from receiving First Amendment protection. See Cardtoons, 95 F.3d at 968; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. e. Application of the First Amendment in the Context of Interactive Expression: Expression is not disqualified from First Amendment protection because it is interactive. Interactive Digital Software, 329 F.3d at 957. Thus, “the breadth of the First Amendment” has been extended to “pictures, graphic design, concept art, sounds, music, stories, and narrative present in video games.” Id. The First Amendment is applicable to interactive expression because “literature is most successful when it ‘draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ” Id. (quoting Am. Amusement Mach. Ass’n v. Kendrick, 244 F.3d 572, 577 (7th Cir.2001)). As such, to the extent that CBC’s use of the names and playing records of Major League baseball players in the circumstances of this case involves interaction among game participants and between game participants and CBC’s website, such interaction does not preclude such use from being protected under the First Amendment. f. Application of the First Amendment to Commercial Speech: The Players’ Association suggests, to the extent expression is involved in the matter under consideration, that such expression is actually commercial speech and that it is, therefore, not protected under the First Amendment. Doc. Ill at 20. “Commercial speech is best understood as speech that merely advertises a product or service for business purposes.” Cardtoons, 95 F.3d at 970 (citation omitted). “The Supreme Court has defined commercial speech as ‘expression related solely to the economic interests of the speaker and its audience.’ ” Id. (quoting Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980)). Expression, however, is not commercial speech if it does not advertise another unrelated product, and speech is not transformed into commercial speech merely because the product at issue is sold for profit. Id. (citing Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 761, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976)). In the context of the matter under consideration, CBC communicates information about Major League baseball players; CBC does not use players’ names and playing records for the purpose of advertising a product or services. As such, the court finds that CBC’s use of the players’ names and playing records is not commercial speech. Id. at 970. In summary and for the reasons fully set forth above, the court finds that the players’ records which CBC provides are available to the public at large by watching games and are disseminated to the public in newspapers and by statistics providers; CBC uses players’ names to convey information, the players’ records, which information is already in the public domain. See Ex. 16 E; Interactive Digital Software, 329 F.3d at 954. CBC’s website encourages game participants to learn about players’ playing records and can be said to provide an education in baseball. See Cardtoons, 95 F.3d at 968-69. Further, CBC’s games disseminate statistical information about baseball players; this statistical information is historical fact. See id. at 969; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. Indeed, CBC’s fantasy baseball games entertain participants based upon baseball history. See id. The fact that CBC derives a profit from its games does not preclude use of the players’ names and playing records from being protected speech under the First Amendment. See ETW, 332 F.3d at 924; Cardtoons, 95 F.3d at 970. Likewise, to the extent that CBC’s fantasy baseball games are interactive, use of players’ names and playing records in the context of the games is not precluded from First Amendment protection. See Interactive Digital Software, 329 F.3d at 957. CBC’s use of players’ names and playing records in the context of this case is not commercial speech. See Cardtoons, 95 F.3d at 970. For these reasons the court finds that the First Amendment is applicable in the context of the right of publicity claim in the matter under consideration. See Zacchini, 433 U.S. at 567, 97 S.Ct. 2849; New York Times Co., 376 U.S. at 265, 84 S.Ct. 710. The court further finds that CBC’s use of the names and playing records of Major League baseball players in the context of the matter under consideration is speech which is protected under the First Amendment. See Interactive Digital Software, 329 F.3d at 957; Cardtoons, 95 F.3d at 968-69.; ETW, 332 F.3d at 924; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. 2. Balancing CBC’s First Amendment Right of Freedom of Expression with the Players’ Right of Publicity: Once it is determined that the First Amendment is applicable in the context of a claim of the right of publicity, courts balance “the right to be protected from unauthorized publicity ... against the public interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press.’ ” Gionfriddo, 94 Cal.App.4th at 409, 114 Cal.Rptr.2d 307 (citations omitted). See also ETW, 332 F.3d at 931; TCI, 110 S.W.3d at 372. “There is an inherent tension between the right of publicity and the right of freedom of expression under the First Amendment. This tension becomes particularly acute when the person seeking to enforce the right is a famous ... athlete ... whose exploits, activities, accomplishments, and personal life are subject to constant scrutiny and comment in the public media.” ETW, 332 F.3d at 931. The Restatement (Third) of Unfair Competition, § 47, Comment c, notes that “ ‘[t]he right of publicity as recognized by statute and common law is fundamentally constrained by the public and constitutional interest in freedom of expression.’ ” Id. at 930. As a result of the tension between the right of publicity and the First Amendment courts engage in “judicial line drawing.” Id. at 931 (“ ‘[A]t what point does the right [of publicity] collide with the right of free expression guaranteed by the First Amendment?’ ”). Upon considering whether the First Amendment takes precedence over a claimed right of publicity, courts “balance the magnitude” of restricting the expression at issue “against the asserted governmental interest in protecting” the right of publicity. Cardtoons, 95 F.3d at 972. As such this court must examine the importance of CBC’s right to freedom of expression and the consequences of limiting that right. Id. These consequences must be weighed against the effect of infringing on the Major League baseball players’ claimed right of publicity. Id. See also Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307 (holding that the public interest in expression must be weighed against the plaintiffs economic and noneconomic interests); TCI, 110 S.W.3d at 372 (holding that it is appropriate to “weigh the state’s interest in protecting a plaintiffs property right to the commercial value of his or her name and identity against the defendant’s right to free speech”) (citing Zacchini, 433 U.S. at 574-75, 97 S.Ct. 2849). In order to apply a First Amendment balancing test this court must first identify the rights involved. Gionfriddo, 94 Cal. App.4th at 410, 114 Cal.Rptr.2d 307. Upon identifying the interests at stake in Zacchini the Supreme Court considered that a goal of the right of publicity is to “focus[] on the right of the individual to reap the reward of his endeavors” and that this goal has “little to do with protecting feelings or reputation.” 433 U.S. at 573, 97 S.Ct. 2849. The Court further noted that, where a right to publicity is claimed, the individual’s interest at issue is the right to receive the commercial benefit of the publication of allegedly damaging matter. Id. at 574, 97 S.Ct. 2849. Upon concluding that the First Amendment did not take precedence over the right of publicity in the circumstances of Zacchini, the Court distinguished cases where a person’s name is used “for purposes of trade or the incidental use of a name or picture by the press” from those which “go[] to the heart of [a person’s] ability to earn a living” and which involve “the very activity by which the entertainer acquired his reputation in the first place.” Id. at 576, 97 S.Ct. 2849 (emphasis added). Clearly baseball players make a living playing-baseball and may capitalize on their fame by endorsing products. In the matter under consideration, however, CBC’s use of the names and playing records of Major League baseball players does not interfere with the players’ ability to reap financial reward from these endeavors. As stated above, CBC’s use of Major League baseball players’ names and playing records in the circumstances of this case, therefore, does not go to the heart of the players’ ability to earn a living. Additionally, economic incentive is also justification for the right of publicity, particularly “in the field[ ] of sports.” Cardtoons, 95 F.3d at 973. In regard to the economic incentive element at stake in the right of publicity, the court in Card-toons made the following observation which is applicable in the circumstances of the matter under consideration: [T]he additional inducement for achievement produced by publicity rights are often inconsequential because most celebrities with valuable commercial identities are already handsomely compensated.... [F]or example, ... major league baseball players’ salaries currently average over one million dollars per year, see Bill Brashler, Booooooooooooo-ooo! Let’s Hear It for Pampered, Preening, Overpaid Whiners: The Jocks, Chi.Trib., July 28, 1996, (Magazine), at 12. Such figures suggest that “even without the right of publicity the rate of return to stardom in the entertainment and sports fields is probably high enough to bring forth a more than ‘adequate’ supply of creative effort and achievement.” Madoiu, supra, at 210. In addition, even in the absence of publicity rights, celebrities would still be able to reap financial reward from authorized appearances and endorsements. The extra income generated by licensing one’s identity does not provide a necessary inducement to enter and achieve in the realm of sports and entertainment. Thus, while publicity rights may provide some incentive for creativity and achievement, the magnitude and importance of that incentive has been exaggerated. Id. at 974. Upon examining the interests involved in the right of publicity, right of publicity cases involving the value of one’s performance, such as Zacchini, must be distinguished from right of publicity cases involving the economic value of one’s identity. Cardtoons, 95 F.3d at 973. The “incentive rationale is obviously more compelling in a right of performance case than in a more typical right of publicity case involving the appropriation of a celebrity’s identity.” Id. As the matter under consideration does not involve actual performances of the Major League baseball players but rather involves an allegation that CBC uses the players’ identities, the incentive rationale is not compelling in the circumstances of the matter before this court. See id. Another economic justification for the right of publicity is that it “promotes the efficient allocation of resources.” Id. “The efficiency argument is most persuasive in the context of advertising, where repeated use of a celebrity’s likeness to sell products may eventually diminish its commercial value. The argument is not as persuasive, however, when applied to nonadvertising uses.” Id. at 975 (emphasis added). Significantly, the matter under consideration does not involve advertising. Another “argument offered for rights of publicity is that they protect against consumer deception.” Id. “The Lanham Act, [however,] already provides nationwide protection against false or misleading representations in connection with the sale of products.” Id. (citations omitted). Thus, upon identifying the interests involved in the right of publicity a consideration is whether or not an alleged violation of this right is “likely to confuse or deceive customers.” Id. In the circumstances of the matter before this court, CBC’s use of the names and playing records of Major League baseball players does not suggest that the baseball players are making representations in regard to the sale of any product. As such, there is no likelihood of confusion or deception in the context of the matter before this court. Id. It has been said that the right of publicity seeks to allow persons to enjoy the fruits of the goodwill which they have created. Id. at 975. Indeed, professional athletes have responsibility for their celebrity status based on their athletic achievements; their fame, however, is nonetheless “largely [a] creation of the media or the audience.” Id. As such, balancing the scale in favor of the First Amendment in the circumstances of the matter before this court will not interfere with the ability of Major League baseball players to enjoy the fruits of their goodwill. Another justification for the right of publicity includes the prevention of unjust enrichment. Id. at 976. In the circumstances of the matter under consideration, as CBC merely uses players’ names and playing records which are already in the public domain, there is no possibility of unjust enrichment. In regard to the rights of the public which countervail the interests involved in the right of publicity, the public has an “interest in the dissemination of news and information consistent with the democratic processes under the constitutional guaranties of freedom of speech and of the press.” Gionfriddo 94 Cal.App.4th at 406, 114 Cal.Rptr.2d 307. Significant to the matter under consideration, the court in Gionfriddo held that “[t]he recitation and discussion of factual data concerning the athletic performance of these plaintiffs [who were retired professional baseball players] command a substantial public interest.” Id.See also Cardtoons, 95 F.3d at 973 (holding that the public has an interest in having access to factual data from baseball games). This court has found, in the circumstances of this case, that CBC’s use of the names and playing records of Major League baseball players in its fantasy baseball games informs and entertains about the history of baseball. The public’s interest in this suggests that the interests should be balanced in favor of the First Amendment rather than in favor of the right of publicity. Also, it is significant in the matter before this court that if the players’ right of publicity were to prevail over CBC’s First Amendment right of freedom of expression, CBC’s First Amendment right of freedom of expression would be totally extinguished; CBC would be unable to create and operate its fantasy games as the games cannot operate without the players’ names and playing records. To the extent that Advanced Media and the Players’ Association contend that they do not object to the use of players’ playing records but rather only to their names, such use by CBC is not realistic; the records mean nothing without the names. For example, it would be meaningless and useless to its game participants for CBC to report that there were five home runs or ten singles in a baseball game without identifying the players who hit the home runs or singles. As such, CBC would be out of business if it were precluded from using in its fantasy games either players’ names or their names in conjunction with their playing records. See e.g., ETW Corp., 332 F.3d at 938 (“Permitting [Tiger] Woods’s right of publicity to trump [the defendant’s] right of freedom of expression would extinguish [the defendant’s] right to profit from his creative enterprise”). For the reasons more fully set forth above, after balancing the interests at issue regarding CBC’s First Amendment right to freedom of expression and those involved in the players’ claimed right of publicity the court finds, in the circumstances of this case, that CBC’s First Amendment right to freedom of expression prevails over the players’ claimed right of publicity; none of the justifications for the right of publicity compel a finding that the First Amendment should not trump the right of publicity. See Cardtoons, 95 F.3d at 972-76; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. The policy considerations and interests at risk upon restricting CBC’s First Amendment right to freedom of expression outweigh the policy considerations and interests at risk in the players’ claimed right of publicity. See Cardtoons, 95 F.3d at 972-76; Gionfriddo, 94 Cal.App.4th at 410, 114 Cal.Rptr.2d 307. In summation, the court finds that the First Amendment applies in the matter under consideration. See Zacchini, 433 U.S. at 567, 97 S.Ct. 2849; New York Times, 376 U.S. at 265, 84 S.Ct. 710; ETW, 332 F.3d at 930. Moreover, assuming, arguendo, that the players have a right of publicity in their names and playing records and that CBC has and is violating the players’ right of publicity, the court finds, in the circumstances of this case, that the players’ right of publicity must give way to CBC’s Fi