Rocking Wrigley: The Chicago Cubs' Off-Field Struggle to Compete for Ticket Sales with its Rooftop Neighbors

I. INTRODUCTION 378 II. FCC AND JUDICIAL RECOGNITION 381 A. FCC Leniency 381 B. Judicial Favoritism of Sports Property Protection 381 C. Fortification of Sports Property Rights Through Enactment of the Copyright Act 383 III. THE CHICAGO CUBS' COMPLAINT 384 A. Have the Rooftop Owners Been Unjustly Enriched? 384 B. Balancing Sports Property and Land Use Rights 385 C. Copyright in Relation to Sports Property 385 IV. UNJUST ENRICHMENT 386 A. Restatement Position 386 B. Sole Element of Proximity 387 V. LAND USE RIGHTS 388 A. Deppert v. Detroit Base-Ball Club 388 B. Right to Observe and Record Events on Adjoining Land 389 VI. COPYRIGHT INFRINGEMENT CLAIMS 390 A. Fundamentals of the Copyright Act 390 B. NBA v. Motorola 391 C. Copyright in One Event Afforded to Several Entities 393 VII. CONCLUSION 395 I. INTRODUCTION For the entire history of Wrigley Field, landlords of these buildings, their tenants and guests have enjoyed watching major league baseball games from these unique vantage points .... It would ... be absurd to claim that persons lawfully on the property of the buildings near Wrigley Field must avert their eyes in order to avoid "misappropriating" these games. (1) In 2000, the Chicago National League Ball Club ("Cubs" or "Club"), owned by the Tribune Company, (2) sought to enlarge its playing facility, Wrigley Field). (3) The proposal called for an estimated expansion of approximately 2,000 seats to a ballpark that currently accommodates 39,059 people. (4) The residents of Wrigleyville, the area surrounding Wrigley Field, have vehemently rejected such plans to augment the ballpark's seating capacity, stating that such additions would ultimately increase "parking problems, traffic, litter, noise, crime, public urination, and other nuisances" in the vicinity. (5) In attempting to expand the ballpark, the Tribune Company began planning and bargaining with Wrigley Field's neighbors. However, the team owners were unable to negotiate any deal. (6) During these discussions, several rooftop businesses overlooking Wrigley Field backed the neighbors' cause. (7) The rooftop operators, who have created profitable enterprises by selling tickets to fans (wishing to view games at Wrigley from their rooftops), (8) worried that their extraordinary views of the team's playing field would be obstructed by the proposed venue expansion. (9) The Cubs frustration with this unraveling situation reached its zenith on December 16, 2002, when the Club filed a lawsuit against the owners of several of these rooftop businesses. (10) The Cubs argue that the rooftop operators violate copyright laws and "directly compete" with the team for ticket sales. (11) Moreover, the Cubs aver that the rooftop business owners have been "piggybacking" on team marketing in direct violation of the Lanham Act, have misappropriated the team's property, and have been unjustly enriched. (12) The outcome of this case will seriously affect several areas of the law. The suit raises federal questions concerning the Copyright and Lanham Acts. It also raises state questions concerning contracts, land use controls, and misappropriation. While resolving these claims is important, this Note focuses on several other questions that directly impact communications law. …