Virtual Reality as a Training Interface: The Legal Complications

Major League Baseball, despite its overarching indifference to using new media to popularize the game, is distinctly interested in integrating cutting edge technology into decision making, player development, and day to day adjustments. Be it the data collection technology implemented by Major League Baseball Advanced Media (MLBAM), which gathers data and utilizes in Statcast a form of augmented reality, or the detailed analysis of buckets of PITCHf/x data, the league and teams have an interest in the pursuit of the marginal advantage. Of late, these advantages have been discovered at the intersection of statistical analysis and information-collecting cameras.

Virtual and augmented reality are increasingly tethered to athletes and sports as potential uses are being explored. Golden State Warriors defensive savant Andre Iguodola was brought to Magic Leap, an industry leader because of its interest in developing sports based ventures. Major League Baseball’s efforts to integrate the technology have been varied and at this point cursory. In 2017, MLB introduced MLB.com At Bat VR, advertised as “the first complete live-game sports experience in Virtual Reality, which means that not only can you watch real-time video (or any archived game back to 2015), you can do it in an immersive virtual experience.”

At the 2017 All-Star Game, MLB set up the Esurance Behind The Plate with Buster Posey VR Experience. It allowed fans to “catch fastballs, curveballs and sliders from a generic pitcher at velocities ranging from 86-93 mph.” Posey described the virtual reality simulation as “an out-of-body experience.”

Existing on the cutting edge of all sciences is a priority for all organizations, specifically, those that find more cost-efficient advantages. It is with this fundamental understanding that the potential influence of augmented reality and virtual reality is to be discussed.

First, let’s get some operational definitions of the two key terms.

Augmented reality is a view of a physical, real-world environment whose elements are “augmented” by computer-generated or extracted real-world sensory input.

Virtual reality is an experience using realistic images and sounds, and stimulating other senses to create physical existence in a new space.

Teams have already worked over the past few years to inform hitters of upcoming match-ups. Posey notes the shifts in baseball preparation: “I’m used to having the scouting report in a three-ring binder and flipping through the pages and looking down and seeing who’s in the bullpen.” As baseball becomes more specialized, information on an opponent’s tendencies is great information. However, it has its limits. One can know that Dallas Keuchel throws roughly 12-15 percent change-ups, but using that data effectively is difficult in a quick-twitch sport.

The Kershaw Hypothetical

Imagine for a moment, the progressive Houston Astros preparing for Game One of the 2017 World Series. They face the  best pitcher in baseball in Clayton Kershaw, and not only must they face a pitcher with a historically great arsenal but also one their lineup is fairly unfamiliar with.

The Astros, formerly of the National League Central, had faced Kershaw eight times prior to Game One, but only once since the start of 2015. In this sense, Kershaw had a dynamic operational advantage because the Astros were faced with the unenviable task of becoming comfortable with picking up the baseball from his release points. Further, once a release point is identified, a hitter must become comfortable with the approach a pitcher like Kershaw may take to get him out.

The complexity of picking the ball up for the first time creates a significant pitcher-hitter advantage because it adds another layer to the hitter’s consideration besides the pitcher-hitter game-theory battle. Perhaps the most interesting part of the upside of virtual reality for major league baseball is the ability to create familiarity through simulation.

Imagine donning a virtual reality headset to prepare for Kershaw. What could the headset do to prepare you? It could simulate Kershaw’s mechanics closely, projecting him on the mound and simulating the plane of his release point. Using Kershaw’s release point, it could mirror the pitches of Kershaw’s arsenal and demonstrate their movement off his release point plane.

Then consider the capacity to interject the complexity of Kershaw into the simulation interaction. A designer could animate the game theory challenges of facing him by introducing the pitch usage percentages from Brooks Baseball or another PITCHf/x system. With that, players could practice to get a feel for his objectives in certain counts. Bringing pitcher preparation to life for big league hitters creates not only a device for individual match-ups but also a potential player development tool.

Imagine for a moment, Carlos Delgado in 1994 and 1995, stuck playing chunks of his season in Triple-A Syracuse because he has to adjust to the breaking ball. Would his development not be aided in by an opportunity to consistently simulate live game breaking balls? Perhaps a player is having an issue laying off certain offerings. Why not force the player to consistently receive certain offerings and make a decision as to lay off or not?

Virtual reality offers the ability to train on pitch discernment that teams have pursued for years with techniques like marking tennis balls with numbers. Indeed, in 1999 the Chicago Cubs employed a doctor and his tennis ball machine.

Northwestern had a machine installed and batters began sharpening their eye muscles by identifying half-inch numbers marked on speeding tennis balls.

Virtual reality offers consistent exposure to the difficulties of the batter-pitcher match-up without the need for hyper-speed tennis balls, tired arms, or iPads.

However, virtual reality training comes with its own concerns, especially in the context of pitcher match-up preparation. Indeed, the Buster Posey catcher simulation includes the stuff of a generic pitcher, likely in part due to intellectual property concerns and a lack of interest in paying for a license other than Posey’s.

Intellectual Property Law Concerns

Due to the complexity and lifelike nature in which Kershaw can be reproduced, Kershaw and other pitchers would certainly be at least irritated by the creation of simulators of their skills and mechanics. Based on the detail captured by the virtual reality simulator, it may appear on the surface that the pitcher would have an actionable claim against another team for integrating their intellectual property into a development program.

Intellectual property, specifically trade secrets, have been a competitive battlefield during MLB’s big data revolution, and in the past two years, the theft of trade secrets by the St. Louis Cardinals was treated as a serious infraction with substantive organizational costs of multiple draft picks.

One of the issues for Kershaw is that the basic skills or offerings that make him unique as a pitcher are not protected under intellectual property law. Be it his grip of the baseball, his release point, or the spin rate on his slider, Kershaw has no actionable grounds under patent law or copyright law to protect what makes his arsenal unique. Indeed, the component parts of his skill are not copyrightable.

The first strong potential claim would be regarding the component data such as usage percentage, spin rate, and break on the y or x-axis. However, this claim would be troublesome for teams only if those data were collected, analyzed, and held by a company outside of Major League Baseball. However, since the data are collected by either MLBAM or team TrackMan contracts, the teams own the component level data, therefore eliminating any concern regarding the integration of the data into virtual reality models.

The second strong potential claim could arise from a “right of publicity claim.” Right of publicity is often defined as the right to control the commercial use of one’s own identity. The landmark or at least popularized right of publicity case is White v. Samsung Electronics, centering on TV’s Vanna White. White provides the following test for right of publicity under California law: “1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” The prong of most importance in blocking Kershaw’s claim would be the second, where likeness means the appropriation of a visual image.

In a 2017 case regarding the popular Madden NFL football video game, Davis v. Electronic Arts, plaintiffs were players from various historic NFL teams which Madden/EA did not license but included in its games anyway. Players, including former Rams quarterback Vince Ferragamo, argued that Madden was appropriating the players’ likenesses. However, the court disagreed, and provided a cleaner understanding of likeness in the context of professional sports.

Plaintiffs advance no argument that the “avatars” in the Madden games are “readily identifiable” based on the visual characteristics of those avatars. Rather, plaintiffs forthrightly acknowledge their contention is that avatars can be associated with specific retired NFL players because the games include information regarding each avatar’s “(1) team; (2) position; (3) physical characteristics (i.e. height, weight, skin tone, appearance etc.); (4) biographical characteristics (i.e. age and experience)” and because during game play, each avatar allegedly “impersonates or mimics” the way each associated plaintiff played when they were active on the historical teams represented in the games. Of these characteristics, only “skin tone” plainly is observable in the avatars, although there may be some indications of height and weight.”

The court limits protectable likeness characteristics to appearance, considering skin tone, height and potentially weight, but not technical or performance aspects. Technical “impersonation,” be it the quarterback’s release point or overall mechanics, does not give rise to a successful claim. In this application, Kershaw’s only protectable parts are his gawky 6-foot-4 frame and distinguishable yet not distinguished facial hair. These parts of a virtual reality simulation of Kershaw would be largely useless, and easy to avoid integrating into a simulator.

With the EA case law in mind, an organization can integrate almost every type of pitcher into a database, input important release point and arsenal information, create a detailed simulation for hitters and not be concerned with any potential infringement on Kershaw, or any other pitcher’s intellectual property.

Virtual reality is a new frontier, the wild west of innovation, with the law likely to slowly follow behind, bewitched by innovations unforeseen. Like the regulatory environment around it, virtual reality provides only uncertainty, but the uncertainty is paired with unmatched potential, especially for major league baseball teams.

References & Resources

• Lucas Matney, TechCrunch, “Magic Leap just had some of its secrets spilled by Andre Iguodala”
• Ronald Blum, Associated Press/USA TODAY, “Virtual reality baseball game at All-Star FanFest is a hit”
• Bill Jauss, Chicago Tribune, “Batting An Eye”
• Associated Press, The Guardian, “St Louis Cardinals docked two draft picks and fined $2m for hacking Astros”