Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n

• Citation: 805 F.2d 663
• Decision Date: 29 October 1986
• Docket Number: No. 85-2020,85-2020
• Parties: , 231 U.S.P.Q. 673, 1986 Copr.L.Dec. P 26,024, 13 Media L. Rep. 1625 BALTIMORE ORIOLES, INC., et al., Plaintiffs-Appellees, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, a labor organization and an unincorporated association consisting of the Major League Baseball Players, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 663

805 F.2d 663

55 USLW 2250, 231 U.S.P.Q. 673, 1986

Copr.L.Dec. P 26,024,

13 Media L. Rep. 1625

BALTIMORE ORIOLES, INC., et al., Plaintiffs-Appellees, v. MAJOR LEAGUE BASEBALL PLAYERS ASSOCIATION, a labor organization and an unincorporated association consisting of the Major League Baseball Players, Defendant-Appellant.

No. 85-2020.

United States Court of Appeals Seventh Circuit.

Argued Jan. 22, 1986.

Decided Oct. 29, 1986.

James W. Quinn, Weil, Gotshal & Manges, New York City, for defendant-appellant.

Louis L. Hoynes, Katten, Muchin, Zavis, Pearl & Galler, Chicago, Ill., for plaintiffs-appellees.

Before COFFEY and FLAUM, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

ESCHBACH, Senior Circuit Judge.

The primary issue involved in this appeal is whether major league baseball clubs own exclusive rights to the televised performances of major league baseball players during major league baseball games. For the reasons stated below, we will affirm in part, vacate in part, and remand for further proceedings.

I

This appeal arises out of a long-standing dispute between the Major League Baseball Clubs ("Clubs") and the Major League Baseball Players Association ("Players") regarding the ownership of the broadcast rights to the Players' performances during major league baseball games. After decades of negotiation concerning the allocation of revenues from telecasts of the games, the Players in May of 1982 sent letters to the Clubs, and to television and cable companies with which the Clubs had contracted, asserting that the telecasts were being made without the Players' consent and that they misappropriated the Players' property rights in their performances. The mailing of these letters led the parties to move their dispute from the bargaining table to the courtroom.

On June 14, 1982, the Clubs filed an action (entitled Baltimore Orioles, Inc. v. Major League Baseball Players Association, No. 82 C 3710) in the United States District Court for the Northern District of Illinois, in which they sought a declaratory judgment that the Clubs possessed an exclusive right to broadcast the games and owned exclusive rights to the telecasts. Each count sought essentially the same relief, but was premised upon a different theory: Count I was based upon copyright law, in particular the "works made for hire" doctrine of 17 U.S.C. Sec. 201(b); Count II rested upon state master-servant law; Count III was predicated upon the collective bargaining agreement between the Clubs and the Players, including the Uniform Player's Contract; and Count IV was based upon the parties' customs and dealings.

On July 1, 1982, three major league players brought an action (entitled Rogers v. Kuhn, No. 82 C 6377) against the Clubs in the United States District Court for the Southern District of New York. The three players (whom we also refer to as the "Players") sought a declaration that the game telecasts misappropriated their property rights in their names, pictures, and performances, and also asked for damages and injunctive relief. The Rogers complaint asserted six claims for relief, based upon the Players' alleged property rights in their names, pictures, and performances, the doctrine of unjust enrichment, and sections 50 and 51 of the New York Civil Rights Statute, N.Y.Civ.Rights Law Secs. 50-51. After the district court in Chicago denied a motion to transfer the Baltimore Orioles action to New York, the parties stipulated to a transfer of the Rogers suit from New York to Chicago, and to consolidation of the two cases.

The parties moved for summary judgment on Counts I and II of the Baltimore Orioles complaint, which concerned the Clubs' copyright and master-servant claims. On May 23, 1985, the district court granted the Clubs summary judgment on these two counts. See Baltimore Orioles, Inc. v. Major League Baseball Players Association, Copyright L.Dec. (CCH) p 25,822 (N.D.Ill.1985). On June 14, 1985, the Players filed a notice of appeal from the grant of summary judgment for the Clubs in the Baltimore Orioles action.

II

A. Appellate Jurisdiction

Before proceeding to the merits, we must pause to consider whether we have jurisdiction over this appeal. 28 U.S.C. Sec. 1291 grants the courts of appeals "jurisdiction of appeals from all final decisions of the district courts of the United States." It is axiomatic that Sec. 1291 is jurisdictional, see, e.g., Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 760 F.2d 177, 180 (7th Cir.1985), that appellate jurisdiction cannot be conferred by consent of the parties, see, e.g., Kaszuk v. Bakery & Confectionary Union & Industry International Pension Fund, 791 F.2d 548, 552 (7th Cir.1986), and that this court has the right, indeed the duty, sua sponte, to ascertain whether we possess jurisdiction over an appeal, see, e.g., Christianson v. Colt Industries Operating Corp., 798 F.2d 1051, 1055-56 (7th Cir.1986); In re Barker, 768 F.2d 191, 192 (7th Cir.1985); Motorola, Inc. v. Computer Displays International, Inc., 739 F.2d 1149, 1153 (7th Cir.1984).

In this case, the district court's May 23, 1985, order granted summary judgment for the Clubs on two of the four counts in the Baltimore Orioles complaint. Although the May 23 order did not expressly grant judgment on the remaining two counts in the Baltimore Orioles complaint or on any of the counts in the Rogers complaint, the district court on the same day entered judgment for the Clubs and against the Players in both actions. ¹ During oral argument we raised the issue of our appellate jurisdiction to determine whether the May 23 order was an appealable final decision. In response to our inquiry, the parties submitted an amended judgment order dated January 27, 1986, expressly dismissing the Rogers complaint and Counts III and IV of the Baltimore Orioles complaint nunc pro tunc to May 23, 1985.

In general, a decision is final for the purpose of Sec. 1291 if it ends the litigation on the merits and leaves nothing for the district court to do but execute the judgment. See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); St. Louis, Iron Mountain & Southern Railroad v. Southern Express Co., 108 U.S. 24, 28-29, 2 S.Ct. 6, 8, 27 L.Ed. 638 (1883). Judged by this standard, the district court's May 23 order was a final decision because it effectively terminated the litigation on the merits. It is true that the May 23 order did not explicitly grant judgment on Counts III and IV of the Baltimore Orioles complaint and on each of the counts in the Rogers complaint; however, as the amended judgment order makes clear, the parties had abandoned those claims. We have held that an order that effectively ends the litigation on the merits is an appealable final judgment even if the district court did not formally enter judgment on a claim that one party has abandoned. See American National Bank & Trust Co. of Chicago v. Bailey, 750 F.2d 577, 580-81 (7th Cir.1984), cert. denied, 471 U.S. 1100, 105 S.Ct. 2324, 85 L.Ed.2d 842 (1985); see also American Family Mutual Insurance Co. v. Jones, 739 F.2d 1259, 1261 n. 1 (7th Cir.1984). We therefore conclude that the May 23 order was an appealable final decision from which the Players filed a timely notice of appeal. Hence, we have jurisdiction to decide this dispute.

B. Copyright Claim

The Clubs sought a declaratory judgment "that the telecasts of Major League Baseball games constitute copyrighted 'works made for hire' in which defendant and Major League Baseball players have no rights whatsoever." Baltimore Orioles Complaint, Prayer for Relief p 1. The district court found that the Clubs, not the Players, owned a copyright in the telecasts as works made for hire and that the Clubs' copyright in the telecasts preempted the Players' rights of publicity in their performances. See Baltimore Orioles, 1985 Copyright L.Dec. at 19,732. Accordingly, it granted summary judgment and entered final judgment for the Clubs on this claim. The Players argue that the district court erred in holding that a baseball player's live performance, as embodied in a copyrighted telecast of the game, constitutes a work made for hire so as to extinguish the player's right of publicity in his performance. ²

1. Works Made for Hire Under 17 U.S.C. Sec. 201(b)

Our analysis begins by ascertaining whether the Clubs own a copyright in the telecasts of major league baseball games. In general, copyright in a work "vests initially in the author or authors of the work," 17 U.S.C. Sec. 201(a); however, "[i]n the case of a work made for hire, the employer or other person for whom the work was prepared is considered the author ... and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright." 17 U.S.C. Sec. 201(b). ³ A work made for hire is defined in pertinent part as "a work prepared by an employee within the scope of his or her employment." 17 U.S.C. Sec. 101. ⁴ Thus, an employer owns a copyright in a work if (1) the work satisfies the generally applicable requirements for copyrightability set forth in 17 U.S.C. Sec. 102(a), (2) the work was prepared by an employee, (3) the work was prepared within the scope of the employee's employment, and (4) the parties have not expressly agreed otherwise in a signed, written instrument.

a. Copyrightability of the telecasts

The district court concluded that the telecasts were copyrightable works. We agree. Section 102 sets forth three conditions for copyrightability: first, a work must be fixed in tangible form; second, the work must be an original work of authorship; and third, it must come within the subject matter of copyright. ⁵ See 17 U.S.C. Sec. 102(a). Although there may have been some question at one time as to whether simultaneously recorded live broadcasts...