Baltimore Orioles, Inc. v. Major League Baseball Players Association

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.

* 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.

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.

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 were copyrightable, this is no longer the case. Section 101 expressly provides that "[a] work consisting of sounds, images, or both, that are being transmitted, is 'fixed' ... if a fixation of the work is being made simultaneously with its transmission." Since the telecasts of the games are videotaped at the same time that they are broadcast, the telecasts are fixed in tangible form. See National Football League v. McBee & Bruno's, Inc., 792 F.2d 726, 731-32 (8th Cir.1986); see also H.R.Rep. No. 1476, 94th Cong., 2d Sess. 52 ("House Report"), reprinted in 1976 U.S.Code Cong. & Ad.News 5659, 5665.

Moreover, the telecasts are original works of authorship. The requirement of originality actually subsumes two separate conditions, i.e., the work must possess an independent origin and a minimal amount of creativity.6 See, e.g., L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 490 (2d Cir.) (en banc), cert. denied, 429 U.S. 857, 97 S.Ct. 156, 50 L.Ed.2d 135 (1976); Withol v. Wells, 231 F.2d 550, 553 (7th Cir.1956); see also M. Nimmer, Nimmer on Copyright Sec. 2.01 (1985) ("Nimmer"). It is obvious that the telecasts are independent creations, rather than reproductions of earlier works.

As for the telecasts' creativity, courts long have recognized that photographing a person or filming an event involves creative labor. See, e.g., Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60, 4 S.Ct. 279, 282, 28 L.Ed. 349 (1884). For example, one court held that the Zapruder film of the Kennedy assassination was copyrightable because it embodied

many elements of creativity. Among other things, Zapruder selected the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto), the area in which the pictures were to be taken, the time they were to be taken, and (after testing several sites) the spot on which the camera would be operated.

Time Inc. v. Bernard Geis Associates, 293 F.Supp. 130, 143 (S.D.N.Y.1968). The many decisions that must be made during the broadcast of a baseball game concerning camera angles, types of shots, the use of instant replays and split screens, and shot selection similarly supply the creativity required for the copyrightability of the telecasts. See House Report at 52, reprinted in 1976 U.S.Code Cong. & Ad.News at 5665 ("When a football game is being covered by four television cameras, with a director guiding the activities of the four cameramen and choosing which of their electronic images are sent to the public and in which order, there is little doubt that what the cameramen and the director are doing constitutes 'authorship.' ").7

Furthermore, the telecasts are audiovisual works, which under Sec. 1028 come within the subject matter of copyright. See 17 U.S.C. Sec. 101 (definition of "[a]udiovisual works")9; see also WGN Continental Broadcasting Co. v. United Video, Inc., 693 F.2d 622, 627-28 (7th Cir.1982) (teletext included in news broadcasts is a copyrightable audiovisual work); cf. Midway Manufacturing Co. v. Artic International, Inc., 704 F.2d 1009, 1012 (7th Cir.) (video games are copyrightable audiovisual works), cert. denied, 464 U.S. 823, 104 S.Ct. 90, 78 L.Ed.2d 98 (1983). The telecasts are, therefore, copyrightable works.

b. Employer-employee relationship

With regard to the relationship between the Clubs and the Players, the district court found, and the Players do not dispute, that the Players are employees of their respective Clubs. We add only that this finding is consistent with the broad construction given to the term "employee" by courts applying the "work made for hire" doctrine. See Evans Newton Inc. v. Chicago Systems Software, 793 F.2d 889, 894 (7th Cir.1986) (a person acting under another's direction and supervision is an employee for the purpose of the work made for hire doctrine); Aldon Accessories v. Spiegel, Inc., 738 F.2d 548, 551-53 (2d Cir.) (same), cert. denied, 469 U.S. 982, 105 S.Ct. 387, 83 L.Ed.2d 321 (1984).

c. Scope of employment

The district court further found that the scope of the Players' employment encompassed the performance of major league baseball before "live and remote audiences." See Baltimore Orioles, 1985 Copyright L.Dec. at 19,731. On appeal the Players argue that there exist genuine issues of material fact as to whether the performance of baseball for televised audiences is within the scope of the Players' employment. Nevertheless, the Players failed to raise this contention in timely fashion. In their briefs and argument before the district court, the Players asserted several reasons that telecasts of major league baseball games might not be works made for hire. See Players' Memorandum in Opposition to the Owners' Motion for Summary Judgment and in Support of the Players' Cross-Motion for Summary Judgment on the Copyright Claim 101-18 ("Players' Summary Judgment Memorandum"); Transcript of Summary Judgment Hearing 40-43. However, they never claimed that the performance of baseball before televised audiences was not within the scope of their employment. Indeed, the only issue as to which Players argued that there was a genuine issue of material fact concerned the parties' written agreements respecting ownership of the telecasts' copyright. See Players' Summary Judgment Memorandum 118. It is axiomatic that an argument of this kind is waived if it is not brought before the district court. See, e.g., Libertyville Datsun Sales, Inc. v. Nissan Motor Corp., 776 F.2d 735, 737 (7th Cir.1985) (citing cases); Hershinow v. Bonamarte, 735 F.2d 264, 266 (7th Cir.1984). The Players, therefore, failed to preserve this argument.

Moreover, even on appeal, the Players do not identify any evidence that would create a genuine issue of material fact as to the scope of the Players' employment. In contrast to the Players' perfunctory claim that playing baseball for television audiences is not within the scope of their employment, see Appellant's Brief 29, the Clubs brought forth detailed evidence in support of their motion for summary judgment that the scope of the Players' employment encompassed performances before broadcast audiences. See Memorandum of Law in Support of the Major League Baseball Clubs' Motion for Summary Judgment 6, 9-10.10 Because of the Players' failure to point to any evidence to the contrary, we would not reverse the district court's finding that the performance of baseball before remote audiences is within the Players' scope of employment even if the Players had preserved their contention. See, e.g., Matsushita Electric Industrial Co. v. Zenith Radio Corp., --- U.S. ---, ---, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (a party who opposes summary judgment "must do more than simply show that there is some metaphysical doubt as to the material facts").

d. Written agreements

Because the Players are employees and their performances before broadcast audiences are within the scope of their employment, the telecasts of major league baseball games, which consist of the Players' performances, are works made for hire within the meaning of Sec. 201(b). See Nimmer, Sec. 5.03[D] (the parties can change the statutory presumption concerning the ownership of a copyright in a work made for hire, but cannot vary the work's status as a work made for hire). Thus, in the absence of an agreement to the contrary, the Clubs are presumed to own all of the rights encompassed in the telecasts of the games. The district court found that there was no written agreement that the Clubs would not own the copyright to the telecasts, and, therefore, that the copyright was owned by the Clubs. As noted above, the Players argued before the district court and on appeal that genuine issues of material fact concerning the parties' agreements as to ownership of the copyright precluded resolution of this issue before a trial on the merits.

The provisions of the three written agreements on which the Players rely to establish a genuine issue of material fact are paragraph 3(c) of the Uniform Player's Contract, paragraph 7 of the Benefit Plan, and article X of the Basic Agreement. First, the Uniform Player's Contract is the standard form contract between individual players and their respective clubs. In 1947, the first year that the Clubs sold network television rights to major league baseball games, the following language was added to the contract:

The Player agrees that his picture may be taken for still photographs, motion pictures or television at such times as the Club may designate and that all rights in such pictures shall belong to the Club and may be used by the Club for publicity purposes in any manner it desires.

Uniform Player's Contract p 3(c). The language of paragraph 3(c) has remained materially unchanged over the years.

Second, the Benefit Plan sets forth the particulars of the Players' pension fund. First entered into in 1967, the Benefit Plan arose in large part out of the parties' longstanding dispute as to the allocation of national television revenues to the pension fund. In negotiations over the 1969 Benefit Plan, the Players asserted their long-held claim that broadcasts of baseball games without their consent violated their rights of publicity in their performances. The Clubs, however, maintained that the Players had no rights whatsoever in the telecasts. The parties accordingly agreed to the following compromise provision:

The execution of this Agreement shall not be deemed to change any rights or obligations of the Clubs or the players with respect to the funding of the Plan (except to the extent set forth in other Paragraphs of this Agreement) or with respect to radio and television, as such rights and obligations existed immediately after the execution of the Agreement Re Major League Baseball Players Benefit Plan of January 1, 1967.

1969 Benefit Plan p 7. Identical provisions have been incorporated in every Benefit Plan negotiated since 1969.

Third, the Basic Agreement represents the collective bargaining agreement between the Players and the Clubs. The original Basic Agreement entered into in 1968 provided that grievances would be arbitrated by the Commissioner of Baseball. When the parties entered into the 1970 Basic Agreement, they agreed to arbitration of grievances by a tripartite panel, rather than by the Commissioner; however, the Clubs did not agree to submit to impartial arbitration those disputes concerning the right to broadcast major league baseball games. The parties thus agreed that:

Anything in the Grievance Procedure provided for in the Basic Agreement to the contrary notwithstanding, complaints or disputes as to any rights of the Players or the Clubs with respect to the sale or proceeds of sale of radio or television broadcasting rights in any baseball games by any kind or method of transmission, dissemination or reception shall not be subject to said Grievance Procedure. However, nothing herein or in the Grievance Procedure shall alter or abridge the rights of the parties, or any of them, to resort to a court of law for the resolution of such complaint or dispute.

1970 Basic Agreement art. X. This language has been included verbatim in each Basic Agreement entered into since 1970.

The Players contend that these three provisions create a genuine issue of material fact with respect to the parties' agreements concerning the ownership of the copyright to the telecasts. We disagree. Section 201(b) states that the employer owns the copyright in a work made for hire "unless the parties have expressly agreed otherwise in a written instrument signed by them." The requirement that an agreement altering the presumption that an employer owns the copyright in a work made for hire represents a substantial change in the "work made for hire" doctrine. Under prior law, "such an agreement could be either oral or implied." Nimmer, Sec. 5.03[D] (emphasis added); see also May v. Morganelli-Heumann & Associates, 618 F.2d 1363, 1369 (9th Cir.1980) (alleged custom that architect retains the copyright in his drawings unless the parties otherwise agree raises material issue of fact). However, Sec. 201(b) requires that an agreement altering the statutory presumption be both written and express. In essence, this provision is a statute of frauds. See Roth v. Pritikin, 787 F.2d 54, 56 (2d Cir.1986) (discussing parallel provision for specially commissioned works in 17 U.S.C. Sec. 101).

In this case, the parties have not expressly agreed to rebut the statutory presumption that the Clubs own the copyright in the telecasts. Paragraph 3(c) of the Uniform Player's Contract does not declare that the copyright in the telecasts is owned by the Players, rather than by the Clubs. Instead, it merely grants the Clubs the rights to take the Players' pictures for still photographs, motion pictures, and television and to use the pictures for publicity purposes. A limitation on the Clubs' rights to televise the Players' performances perhaps might be implied by the grant of these particular rights;11 however, even if such an implied limitation were plausible, paragraph 3(c) nowhere contains an express statement that the Clubs do not own the copyright in the telecasts of the Players' performances.

Paragraph 7 of the Benefit Plan and Article X of the Basic Agreement similarly do not declare that the Players, rather than the Clubs, own the copyright in the telecasts. The two provisions simply preserved whatever rights in the telecasts that the parties might possess and reserved each party's right to have disputes concerning television rights be resolved in court, rather than by arbitration. They nowhere state that either the Clubs or the Players own the copyright in the telecasts.12 These provisions thus do not represent an express agreement that the Players own the copyright in the telecasts. If anything, they reflect the parties' express disagreement as to the copyright's ownership.

The Players also argue that these three provisions must be read in light of the agreements' collective bargaining history, and that the circumstances surrounding the agreements cannot be determined without a trial.13 We disagree. Under Sec. 201(b), an agreement altering the statutory presumption that the employer owns the copyright in a work made for hire must be express. This is to say, the parties' agreement must appear on the face of the signed written instrument. Section 201(b) thus bars the use of parol evidence to imply a provision not found within the four corners of the parties' agreement.14 Cf. Arthur Retlaw & Associates v. Travenol Laboratories, Inc., 582 F.Supp. 1010, 1014 (N.D.Ill.1984) (letter signed by only one party does not constitute a signed, written instrument under Sec. 201(b)). Moreover, even if extrinsic evidence were admissible to explain an ambiguity in the parties' agreement, the provisions relied upon by the Players are unambiguous with respect to the ownership of the copyright in the telecasts. Since the contractual terms regarding television rights are clear, it is unnecessary to examine the parties' collective bargaining history to ascertain the meaning of the agreements.15

The Players further assert that the parties' traditional practice of devoting approximately one-third of the revenues derived from nationally televised broadcasts to the Players' pension fund establishes a genuine issue of material fact as to the ownership of the copyright in these telecasts.16 We disagree. The allocation of revenues from nationally televised broadcasts is determined by the parties' relative bargaining strength and ability. Depending on the Players' bargaining power, they can negotiate a greater or a lesser share of the national telecast revenues.17 Nevertheless, there is no relationship between the division of revenues from nationally televised broadcasts and the ownership of rights in those telecasts. For example, a motion picture star might negotiate to receive a certain number of "points" from a film's profits; however, that she shares in the film's profits does not mean that she owns some share of the copyright in the film. (Indeed, the producer most likely holds the copyright in the work.) Just as the ownership of points in a film's profits does not represent a proportionate ownership of the copyright in the film, the Players' receipt in the form of pension contributions of a certain fraction of the revenues from nationally televised broadcasts in no way suggests that they own any part of the copyright in the telecasts.

We thus conclude that there are no genuine issues of material fact as to the ownership of the copyright in the telecasts, and that the parties did not expressly agree to rebut the statutory presumption that the employer owns the copyright in a work made for hire. We, therefore, hold that the Clubs own the copyright in telecasts of major league baseball games.182. Preemption under 17 U.S.C. Sec. 301(a)

Although the Clubs own the copyright to the telecasts of major league baseball games, the Players claim that broadcasts of these games made without their express consent violate their rights to publicity in their performances. For the reasons stated below, we hold that the Clubs' copyright in the telecasts of major league baseball games preempts the Players' rights of publicity in their game-time performances.

all legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright as specified by section 106 in works of authorship that are fixed in a tangible medium of expression and come within the subject matter of copyright as specified by sections 102 and 103,19 whether created before or after that date and whether published or unpublished, are governed exclusively by this title. Thereafter, no person is entitled to any such right or equivalent right in any such work under the common law or statutes of any State.

17 U.S.C. Sec. 301(a).20 This provision sets forth two conditions that both must be satisfied for preemption of a right under state law: First, the work in which the right is asserted must be fixed in tangible form and come within the subject matter of copyright as specified in Sec. 102. Second, the right must be equivalent to any of the rights specified in Sec. 106. See Donald Frederick Evans & Associates, Inc. v. Continental Homes, Inc., 785 F.2d 897, 913-14 (11th Cir.1986); Ehat v. Tanner, 780 F.2d 876, 878 (10th Cir.1985); Harper & Row Publishers, Inc. v. Nation Enterprises, 723 F.2d 195, 199-200 (2d Cir.1983), rev'd on other grounds, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); see also Nimmer, Sec. 1.01[B].

a. Section 102 test

The works in which the Players claim rights are the telecasts of major league baseball games. As established above, the telecasts are fixed in tangible form because they are recorded simultaneously with their transmission and are audiovisual works which come within the subject matter of copyright. The first condition for preemption is, therefore, satisfied.

The Players argue, however, that the works in which they claim rights are their performances, rather than the telecasts of the games in which they play, and that performances per se are not fixed in tangible form.21 They contend that, since the works in which they assert rights are not fixed in tangible form, their rights of publicity in their performances are not subject to preemption. We disagree. Under Sec. 101, "[a] work is 'fixed' in a tangible medium of expression when its embodiment in a copy ..., by or under the authority of the author, is sufficiently permanent and stable to permit it to be perceived, reproduced, or otherwise communicated for a period of more than transitory duration." The Players' performances are embodied in a copy, viz, the videotape of the telecast, from which the performances can be perceived, reproduced, and otherwise communicated indefinitely. Hence, their performances are fixed in tangible form, and any property rights in the performances that are equivalent to any of the rights encompassed in a copyright are preempted.

It is, of course, true that unrecorded performances per se are not fixed in tangible form. Among the many such works not fixed in tangible form are "choreography that has never been filmed or notated, an extemporaneous speech, 'original works of authorship' communicated solely through conversations or live broadcasts, and a dramatic sketch or musical composition improvised or developed from memory and without being recorded or written down." House Report at 131, reprinted in 1976 U.S.Code Cong. & Ad.News at 5747. Because such works are not fixed in tangible form, rights in such works are not subject to preemption under Sec. 301(a). Indeed, Sec. 301(b), which represents the obverse of Sec. 301(a), expressly allows the states to confer common law copyright protection upon such works, id.; see also Nimmer Secs. 1.08[C], 2.03[B], and protection has been afforded to unfixed works by some states. See, e.g., Cal.Civil Code Sec. 980 (West 1982 & 1986 Supp.) (protecting "any original work of authorship that is not fixed in any tangible medium of expression"); cf. Estate of Hemingway v. Random House, Inc., 23 N.Y.2d 341, 244 N.E.2d 250, 296 N.Y.S.2d 771 (1968) (common law copyright might be recognized in contents of an unrecorded conversation). Nonetheless, once a performance is reduced to tangible form, there is no distinction between the performance and the recording of the performance for the purpose of preemption under Sec. 301(a). Thus, if a baseball game were not broadcast or were telecast without being recorded, the Players' performances similarly would not be fixed in tangible form and their rights of publicity would not be subject to preemption. See Nimmer, Sec. 1.08[C] (using the example of a live broadcast of a baseball game). By virtue of being videotaped, however, the Players' performances are fixed in tangible form, and any rights of publicity in their performances that are equivalent to the rights contained in the copyright of the telecast are preempted.22