The opinion of the court was delivered by: SCHOONMAKER
This is an action in equity in which plaintiffs ask for a preliminary injunction to restrain defendant from broadcasting play-by-play reports and descriptions of baseball games played by the "Pirates," a professional baseball team owned by Pittsburgh Athletic Company, both at its home baseball park in Pittsburgh, known as "Forbes Field," and at baseball parks in other cities.
The plaintiffs have moved for a preliminary injunction pendente lite. This motion was heard on the bill of complaint, injunction affidavits, and counter-affidavits.
The bill of complaint was filed July 6, 1938. At the first hearing on this motion held July 12, 1938, defendant disclaimed any intention to broadcast the news of any games played by the "Pirates" in cities other than Pittsburgh during the current season; and by affidavit filed in this case stated that no news had been broadcast by it of such "away" games since May 26, 1938. For that reason there appears to be no such danger of imminent injury to the rights of the plaintiffs as to justify a preliminary injunction, so far as concern any games played by the "Pirates" in cities other than Pittsburgh.
As to the games played, and to be played at Forbes Field in Pittsburgh, defendant admits it has broadcast play-by-play news of the Pittsburgh games, and asserts its intention to continue so to do, averring it secures the news thus broadcast and to be broadcast by it in the future from observers whom it has stationed at vantage points outside Forbes Field who can see over the enclosure of that field and observe the plays as they are made. It asserts it has a legal right to continue this practice.
The essential facts are not in dispute. The question at issue is primarily a question of law. Is the defendant within its legal rights in the practices thus pursued by it? The essential facts of the case may be briefly summarized as follows:
The Pittsburgh Athletic Company has granted by written contract, for a valuable consideration, to General Mills, Inc., the exclusive right to broadcast, play-by-play, descriptions or accounts of the games played by the "Pirates" at this and other fields. The National Broadcasting Company, also for a valuable consideration, has contracted with General Mills, Inc., to broadcast by radio over stations KDKA and WWSW, play-by-play descriptions of these games. The Socony-Vacuum Oil Company has purchased for a valuable consideration a half interest in the contract of the General Mills, Inc.
The defendant operates at Pittsburgh a radio broadcasting station known as KQV, from which it has in the past broadcast by radio play-by-play descriptions of the games played by the "Pirates" at Pittsburgh, and asserts its intention to continue in so doing. The defendant secures the information which it broadcasts from its own paid observers whom it stations at vantage points outside Forbes Field on premises leased by defendant. These vantage points are so located that the defendant's observers can see over the enclosures the games as they are played in Forbes Field.
On this state of facts, we are of the opinion that the plaintiffs have presented a case which entitles them under the law to a preliminary injunction.
It is perfectly clear that the exclusive right to broadcast play-by-play descriptions of the games played by the "Pirates" at their home field rests in the plaintiffs, General Mills, Inc., and the Socony-Vacuum Oil Company under the contract with the Pittsburgh Athletic Company. That is a property right of the plaintiffs with which defendant is interfering when it broadcasts the play-by-play description of the ball games obtained by the observers on the outside of the enclosure.
The plaintiffs and the defendant are using baseball news are material for profit. The Athletic Company has, at great expense, acquired and maintains a baseball park, pays the players who participate in the game, and have, as we view it, a legitimate right to capitalize on the news value of their games by selling exclusive broadcasting rights to companies which value them as affording advertising mediums for their merchandise. This right the defendant interferes with when it uses its broadcasting facilities for giving out the identical news obtained by its paid observers stationed at points outside Forbes Field for the purpose of securing information which it cannot otherwise acquire. This, in our judgment, amounts to unfair competition, and is a violation of the property rights of the plaintiffs. For it is our opinion that the Pittsburgh Athletic Company, by reason of its creation of the game, its control of the park, and its restriction of the dissemination of news therefrom, has a property right in such news, and the right to control the use thereof for a reasonable time following the games.
The communication of news of the ball games by the Pittsburgh Athletic Company, or by its licensed news agencies, is not a general publication and does not destroy that right. This view is supported by the so-called "ticker cases"; Board of Trade v. Christie Grain & Stock Co., 198 U.S. 236, 25 S. Ct. 637, 49 L. Ed. 1031; Hunt v. New York Cotton Exchange, 205 U.S. 322, 27 S. Ct. 529, 51 L. Ed. 821; Moore v. N.Y. Cotton Exchange, 270 U.S. 593, 46 S. Ct. 367, 70 L. Ed. 750, 45 A.L.R. 1370; McDearmott Commission Co. v. Board of Trade, 8 Cir., 146 F. 961, 7 L.R.A.,N.S., 889, 8 Ann.Cas. 759; Board of Trade v. Tucker, 2 Cir., 221 F. 305.
On the unfair competition feature of the case, we rest our opinion on the case of International News Service v. Associated Press, 248 U.S. 215, 39 S. Ct. 68, 63 L. Ed. 211, 2 A.L.R. 293. In that case the court enjoined the International News Service from copying news from bulletin boards and early editions of Associated Press newspapers, and selling such news so long as it had commercial value to the Associated Press. The Supreme Court said (248 U.S. at page 236, 39 S. Ct. at page 71): "* * * Regarding the news, therefore, as but the material out of which both parties are seeking to make profits at the same time and in the same field, we hardly ...