In the Opinion written by Justice David, the Indiana Supreme Court concluded Indiana’s right of publicity statute contains an exception for material of newsworthy value that includes online fantasy sports operators’ use of college players’ likenesses for contests.
The matter of Akeem Daniels, Cameron Stingily, and Nicholas Stoner vs. DraftKings, Inc. and FanDuel, Inc. was initiated as a class action complaint in Marion County alleging that the Defendants were promoting and operating their online fantasy sports contests using the Plaintiff’s names and likenesses without their consent and thus violated their right of publicity under Indiana law. The Defendants removed the case to the U.S. District Court for the Southern District of Indiana and moved to dismiss. The District Court dismissed the case and the Plaintiffs appealed to the United States Court of Appeals for the Seventh Circuit, which certified a question of Indiana law to the Indiana Supreme Court.
The certified question from the Seventh Circuit Court of Appeals asked, “[w]hether online fantasy-sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both.” All the Plaintiffs were collegiate student-athletes at different times from 2014-2016. Their statistics, names, and images were used by Defendants in their fantasy sports competitions to allow consumers to build their ideal fantasy team within a capped salary based on artificial prices for each player. The player’s performance translated to a point value determined by Defendants and consumers accumulated these points to become eligible to win cash prizes.
Indiana’s right of publicity statute, Indiana Code § 32-36-1-8(a), provides in part, “a person may not use an aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for one hundred (100) years after the date of the personality’s death without having obtained previous written consent.” In this case, there were two codified exceptions that were argued before the Court, “newsworthy value” and “public interest”. The Court found that this question, being narrowly answered, falls into the “newsworthy value” exception, and therefore did not examine the “public interest” exception.
The Plaintiffs first tried to argue that the exception for newsworthiness does not apply in the context of commercial use, but the Court found that the exception removes the material from the right of publicity’s application for commercial purposes. Plaintiffs then tried to argue that only media companies or news broadcasters are subject to the newsworthiness exception, which the Court found to be immaterial based on the plain language of the statute. The Court found that the Defendants’ use of statistics, images, and names for their fantasy sports competitions is similar to publications in newspapers and websites across the nation and that the “information is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game.” In fact, Defendants and other fantasy sports operators allow consumers to use the data and manipulate it in a unique way.
As far as the question of use in advertisements goes, the Court followed other courts decisions in finding that the risk of unauthorized advertising in the context of fantasy sports is minimal. Justice David stated, “when informational and statistical data of college athletes is presented on a fantasy sports website – it would be difficult to draw the conclusion that the athletes are endorsing any particular product such that there has been a violation of the right of publicity.” However, this is not to say that no court can closely scrutinize a situation and actions of a specific defendant to ensure no unauthorized endorsements are made. Further, the Court deferred making any factual determination on the issue to the federal court.