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Fantasy Sports Dispute Results In New Views On Exceptions to Rights of Publicity
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, leaders in the fantasy sports industry, include commentary, and athletes' names and fictitious salaries, on 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 the individual's 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.”
In raising the newsworthiness and public interest exceptions to enforcement of these rights, FanDuel and DraftKings pointed to the Southern District of Indiana ruling in Time Inc. v. Sand Creek Partners L.P., 825 F.Supp. 210 (S.D.Ind. 1993), which addressed Indiana's common law prior to the enactment of its right-of-publicity statute. In Daniels, District Judge Tanya Walton Pratt noted the Sand Creek court had held: “The scope of the subject matter which may be considered 'of public interest' or 'newsworthy' has been defined in most liberal and far reaching terms.”
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