On this day in 2007, a federal court held that the First Amendment protects the right of fantasy sports leagues to use statistics and players’ names without permission. In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., the U.S. Court of Appeals for the 8th Circuit considered whether CBC, a fantasy sports company, had the right to use, without license, Major League Baseball players’ names and information in the company’s fantasy sports leagues. The court found that CBC’s use of the players’ names violated their rights of publicity. However, the court held that CBC’s First Amendment rights in offering fantasy baseball products trumps the players’ rights of publicity. The court said that because the players’ names and information were “all readily available in the public domain,” those names should be available for use in commercial fantasy sports without compensation to the players.

On this day in 1983, a federal court held that the television show “The Greatest American Hero” did not infringe the rights to Superman. In Warner Bros. Inc. v. American Broadcasting Companies, Inc., the Second Circuit Court of Appeals considered whether the character, Ralph Hinkley, in “The Greatest American Hero,” was sufficiently similar to Superman to constitute copyright infringement or unfair competition. Warner Bros. claimed that Ralph Hinkley was substantially similar to Superman and that the television show copied the “indicia” of Superman, which the court described as “his costume, his abilities, the well-known lines associated with him — in short, anything occurring in the Hero works that might remind a viewer of Superman.” The protagonist of the TV series had Superman-like abilities, and the show frequently referenced Superman. The creator of the show had even described it as being about “the ordinary” guy who becomes “Superman.” However, the court held that a reasonable jury could not conclude that Hinkley was substantially similar to Superman:

The total perception of the Hinkley character is not substantially similar to that of Superman. On the contrary, it is profoundly different. Superman looks and acts like a brave, proud hero, who has dedicated his life to combating the forces of evil. Hinkley looks and acts like a timid, reluctant hero, who accepts his missions grudgingly and prefers to get on with his normal life. Superman performs his superhuman feats with skill, verve, and dash, clearly the master of his own destiny. Hinkley is perplexed by the superhuman powers his costume confers and uses them in a bumbling, comical fashion. In the genre of superheros, Hinkley follows Superman as, in the genre of detectives, Inspector Clouseau follows Sherlock Holmes.

The court similarly found no infringement in the show’s use of lines mentioning Superman or the use of phrases associated with him. It noted that such lines were used to underscore the differences “to humorous effect,” not to create a similarity.

With regards to the unfair competition claims, the court found no likelihood of confusion or “passing off” under § 43(a) of the Lanham Act. The lack of substantial similarity indicated that there was no likelihood of confusion as to the source of the show. The court further held that there was no “passing off” because an average television viewer would not be misled into believing that “The Greatest American Hero” was produced or authorized by those responsible for making the Superman films.

Note: Wholly unrelated to the merits of this case, I think the theme song to “The Greatest American Hero” is one of the finest in television history.

On this day in 2009, David Letterman announced on air that he was a victim of an extortion attempt. Robert Joel Halderman, a CBS News employee and Emmy Award winner, had given Letterman, host of the “Late Show With David Letterman,” a one-page treatment of a screenplay, which revealed that Letterman had sexual encounters with his employees at his World Wide Pants production company. Halderman demanded $2 million to stay quiet; he subsequently pled guilty to attempted grand larceny in the second degree, and received a 6-month jail sentence.