SerpApi.Org
The Chicago Cubs playing games in an "open-air stadium" doesn't "transform the view" from a neighboring rooftop into Cubs property, Wrigley View Rooftop and owner Aidan Dunican argue in a recent court filing. And if it did, other teams, leagues and sports organizers could allegedly demand payment from neighbors who currently watch for free.
Wrigley View Rooftop and Dunican hope to persuade U.S. District Judge Sharon Johnson Coleman to deny the Cubs' summary judgment and a permanent injunction in the team's misappropriation, trademark infringement and unjust enrichment lawsuit. The case, which began in 2024, centers on Wrigley View Rooftop selling access to a rooftop building where fans can watch Cubs games in person without paying the Cubs.
Wrigley View Rooftop maintains the Cubs seek a "new property right" in the form of "visibility of a live sporting event from neighboring private property," with sightlines converted into property rights. The rooftop company asserts that if this "theory" were validated by the court, it would lack a "limiting principle" and its "consequences would extend far beyond Wrigley Field."
To that point, Wrigley View Rooftop warns homeowners who live next to a golf course used for a PGA Tour tournament, restaurants overlooking a marathon route and bars along a NASCAR street race "could all be required to pay royalties merely because they profit from proximity to an event visible from their property."
There are counterarguments to this ominous prediction. There's no reason to believe organizers of PGA tournaments, marathons, NASCAR races and similar sporting would ever demand payment, and thus the hypotheticals are arguably scare tactics rather than realistic consequences.
A few months ago, Judge Coleman ruled that the Cubs' claims are plausible. She stressed the team, which depicts Wrigley View Rooftop as illegally free-riding off the team's financial investment in the playing of games, enjoys a property right in the product of live Cubs games produced at Wrigley Field.
In that discussion, Coleman referred to a court ruling from 1938 in which the Pittsburgh Pirates successfully blocked a radio station sending "observers" to watch games from a rooftop of a building adjacent to Forbes Field and using their observations to transmit an unauthorized radio broadcast of games.
The Cubs now seek a judicial finding from Judge Coleman that no reasonable jury could side with Wrigley View Rooftop, and a permanent injunction to effectively shut down Wrigley View Rooftop.
Through a brief authored by Matthew De Preter and Gary P. Hollander of Aronberg Goldgehn Davis & Garmisa on June 30, Wrigley View Rooftop insists the Cubs' legal arguments should strike out.
Wrigley View Rooftop asserts its business model is straightforward and lawful. The company sells tickets to patrons who-unlike the observers in the Pirates case-don't "record, retransmit, rebroadcast, report or relay" Cubs games but instead watch "live, in-person and in real-time" baseball games that the Cubs "choose to expose to public view."
Along those lines, Wrigley View Rooftop stresses that people watching Cubs games from across a street aren't engaged in a broadcast or other professional activity. Their watching of games shouldn't "threaten the existence of Cubs baseball" or "undermine" the team's "incentive" to stage games.
Wrigley View Rooftop also cites a section of the City of Chicago's municipal code titled, "Rooftops in Wrigley Field Adjacent Area," that contemplates rooftop seating as a lawful activity under certain conditions.
Further, Wrigley View Rooftop takes issue with comments by Cubs chairman Tom Ricketts, who, in a related litigation about a decade ago, compared people in the rooftops watching Cubs games to one neighbor looking through a second neighbor's window to watch the hit show Homeland on Showtime, a premium-pay TV network.
"If Ricketts did not want anyone looking through the window," Wrigley View Rooftop argues, "he should install curtains, and if the Cubs do not want anyone looking at Wrigley, they should install screens."
Wrigley View Rooftop maintains the Cubs are not really opposed to rooftop seats, only to others owning those seats.
In 2004, the Cubs and Wrigley View Rooftop resolved an earlier litigation over the same basic issues by entering into a 20-year revenue sharing agreement in which Wrigley View Rooftop shared a cut of its profits. The agreement, as described in court documents, prevented the Cubs from trying to block views from the rooftop seats with screens, obligated the Cubs to provide marketing and allowed Wrigley View Rooftop to use Cubs trademarks.
The two businesses couldn't agree to new terms and their deal expired on Dec. 31, 2023. But Wrigley View Rooftop keeps selling seats and, the Cubs contend, continues to use trademarks of the MLB team. Wrigley View Rooftop argues it undertook substantial efforts to remove those trademarks from its marketing, website and brochures, though in court documents the Cubs have pointed to what they describe as continuing violations.
The Cubs are also described as installing semi-transparent mesh screens "to obstruct the view" from the rooftop seats, which in turn caused Wrigley View Rooftop "to advise customers of the obstruction."
In addition, Wrigley View Rooftop complains Cubs owners have known what they were getting into when they bought the team. Wrigley Field is a ballpark in the middle of a large city surrounded by tall buildings and "numerous rooftop businesses." Over the years the Cubs have purchased some of those rooftop businesses, but not Wrigley View Rooftop.
Attorneys for the Cubs will have the chance to try to rebut these and other arguments in a reply filing that is due on Aug. 10.
No trial date has been set for the case, which could end in a settlement at any point. Given that the two sides are familiar to one another, there's a chance they could strike a deal similar to the arrangement they negotiated in 2004.
