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Fantasy Sports Dispute Results in New Views On Exceptions to Rights of Publicity
The big news in the fantasy sports arena this past summer was the announcement that competitors FanDuel and DraftKings, which make up more than 90% of the online market, would end their merger bid following the Federal Trade Commission's filing of an antitrust lawsuit against the companies. The two fantasy sports giants have also been lobbying and litigating for legal status of their game in several U.S. states. All this amidst a decrease in revenues.
Now, there's good news for FanDuel and DraftKings on a different front, involving the use of athletes' personality components. In a case of first impression, the U.S. District Court for the Southern District of Indiana has decided that the newsworthiness and public interest exceptions to Indiana's right-of-publicity statute, Indiana Code §32-36-1-1 et seq., do apply to online fantasy sports companies that use college athletes' names and likenesses. Daniels v. FanDuel Inc., 1:16-cv-01230. The Indiana statute's liberal choice-of-law provision for right-of-publicity disputes makes the ruling nationally notable.
Defendants FanDuel and DraftKings include commentary, and athletes' names and fictitious salaries, on the fantasy sports operators' sites, and have used players' names and likenesses for marketing purposes. Indiana Code §32-36-1-7 includes in its right of publicity protection, for which written consent is required, “a personality's property interest in the personality's: (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gestures; or (9) mannerisms.”
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