The Chicago Cubs and Wrigley View Rooftop—which the Cubs accuse of “parasitic” business practices—await a federal judge’s ruling on whether to permanently block Wrigley View Rooftop from selling tickets to view games, concerts and other events at Wrigley Field.
The two sides’ legal arguments have been refined as the Cubs and Wrigley View Rooftop vie to persuade U.S. District Judge Sharon Johnson Coleman to grant summary judgment. Each contends that after Coleman weighs the evidence and testimony shared during pretrial discovery, she’ll rule that there’s nothing for a jury to decide because the law clearly favors their side. The Cubs’ summary judgment motion includes a demand for a permanent injunction that would effectively end Wrigley View Rooftop’s business.
The Cubs sued Wrigley View Rooftop in 2024 for misappropriation, unjust enrichment, false advertising, infringement and related claims. Earlier this year, Coleman held that the Cubs’ claims are plausible. She stressed the Cubs have an established property right in the product of live Cubs games produced at Wrigley Field.
In doing so, Coleman emphasized a ruling from 1938 in favor of the Pittsburgh Pirates against a radio station that placed observers on the rooftop of a building adjacent to Forbes Field to watch the game for a broadcast without paying the Pirates.
Coleman is now weighing rival summary judgment arguments. Through a recent filing authored by Martin L. Roth and other attorneys from Kirkland & Ellis, the Cubs maintain the case is straightforward: Wrigley View Rooftop sells tickets to look into Wrigley Field and does so without the Cubs’ blessing, and that practice is illegal.
The team emphasizes that Wrigley View Rooftop’s business model—which centers on ticket sales and the sale of food, beverages and merchandise to ticket holders—is predicated on the Cubs spending money to show events in Wrigley Field. This is why the Cubs derisively describe Wrigley View Rooftop as a parasite, an organism whose survival depends on the host and that takes from the host without giving back.
The Cubs also maintain the federal Copyright Act, which can preempt state law claims, is not applicable since live ballgames “do not fall within the subject matter of copyright.” The team notes that games are not works of authorship like movies or books. Along those lines, the central issue in the case is not copyrighted broadcasts of Cubs games, but the games themselves.
Another defense argument the Cubs try to strike out is that they could solve the problem by simply blocking the view. The Cubs say that assertion is a red herring, since “the law does not reward misappropriation simply because the victim could try to stop it.” The team also argues that “requiring self-help” as a rule of law could spark “intolerable outcomes.” The Cubs pose a hypothetical: “How would a retail purse designer use self-help to police against bad actors selling ‘knock off’ bags on the streets of New York?”
As to the Cubs’ trademarks, the team maintains Wrigley View Rooftop has used them without permission and has sparked consumer confusion as to whether the Cubs are selling the rooftop tickets.
To further that point, the Cubs say testimony reveals some customers express confusion after learning that the seats they bought weren’t for Wrigley Field or sold by the Cubs.
“One customer,” the Cubs say, “even included a Wrigley Field seating chart to help orient [Wrigley View Rooftop’s] staff to where she wished to be seated.”
To bolster the false advertising claims, the Cubs insist Wrigley View Rooftop has “lied to consumers” by claiming an official partnership with the Cubs, with whom the company had a contractual relationship that ended in 2023. Another alleged misrepresentation by Wrigley View Rooftop is that it is the “last independently owned rooftop” when there are other entities that own rooftops.
Wrigley View Rooftop offers a very different account of the facts and law.
The company insists the Cubs demand a property right that the law doesn’t provide “the right to prohibit people on neighboring private property from witnessing live events that [the Cubs] knowingly and intentionally exhibit in a manner that is visible from such neighboring private property.”
Through a recent filing authored by Matthew De Preter and Gary P. Hollander of Aronberg Goldgehn Davis & Garmisa, Wrigley View Rooftop says there is no statute, ordinance, contract or court ruling that supports the existence of a right that converts a “public-facing, open-air, live event into privately controlled property that extends beyond Wrigley Field.”
Wrigley View Rooftop also rejects the “parasite” label.
The company emphasizes its operations are authorized by the City of Chicago’s municipal code and that it offers a service to the public—the chance to buy a ticket to experience “the unique rooftop experience of seeing live events from a Wrigleyville rooftop.” Relatedly, Wrigley View Rooftop contends there is no legal support for the proposition that the Cubs gain a property right merely because the two businesses might be competing for people willing to pay to watch Cubs games.
If Coleman sided with the Cubs, Wrigley View Rooftop argues, “the Cubs would unilaterally dictate which rooftops get to operate when and under what conditions, and nothing would stop [the Cubs] from demanding rooftops pay 50%, 100%, 1,000% of revenues, or any other exorbitant figure the Cubs demand, simply to operate in exact compliance with the City’s Ordinance.”
Further, Wrigley View Rooftop maintains, cases involving radio broadcasts and other transmissions of information are not analogous. The company says it doesn’t sell admission to Wrigley Field, doesn’t sell Cubs tickets, doesn’t credential journalists to report on Cubs games and doesn’t record or rebroadcast Cubs games. Wrigley View Rooftop maintains its business model is selling access to a Chicago-licensed rooftop venue on its property.
“Watching is not copying,” Wrigley View Rooftop argues. “Seeing is not rebroadcasting. Witnessing is not appropriating. Operating a lawful venue across the street from an open-air stadium is not misappropriation.”
If Coleman denies summary judgment, the case will proceed to trial. Although the Cubs’ situation is factually unique given Wrigley Field’s status as an open-air venue surrounded by rooftop buildings, the case could set important precedent for sports teams in their efforts to prevent viewing of their games through unauthorized means, such as drones and emerging technologies.
The case could also end by settlement at any point, with a plausible settlement involving Wrigley View Rooftop continuing operations but sharing some percentage of revenue with the Cubs. That is the arrangement the two businesses had between 2004 and 2023.
Sign up for Sportico's Newsletter. For the latest news, follow us on Facebook, Twitter, and Instagram.
COVERS INTEL: Young has also performed better on the road, 
