On September 29, 2017, the United States District Court for the Southern District of Indiana (Walton Pratt, J.) issued a decision dismissing claims by three former college football players, Akeem Daniels, Cameron Stingily and Nicholas Stoner, alleging that Fanduel, Inc. and Draftkings, Inc. each violated the players’ respective rights of publicity by including their names and likenesses in fantasy sports competitions. The lawsuit is entitled Daniels, et al. v. Fanduel, Inc., et al., Case No. 16-cv-01230-TWP-DKL (the “Fantasy Sports Lawsuit”).

The decision dismissing the Fantasy Sports Lawsuit turned on whether the defendants’ use of the plaintiffs’ names and likenesses fell within any of the four statutory exceptions to Indiana’s right-of-publicity statute (Code 32-36-1-8(a)), which provides that 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 . . . .” The statute defines a person’s right of publicity to include 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.

What Exceptions Applied to the use of Plaintiffs’ Names and Likenesses?

Players’ Names and Likenesses Fall Within Exceptions for “Newsworthiness” and “Public Interest”

The court noted that Indiana’s right-of-publicity statute includes four exceptions: (i) use for political or newsworthy value; (ii) use in connection with the broadcasting or reporting of an event or topic of general public interest; (iii) use in literary works; and (iv) use to identify a personality as the performer of a recorded performance. The court found that the first two exceptions were applicable to the Fantasy Sports Lawsuit.

With respect to the newsworthiness exception, the court held that the term “newsworthy” was to be interpreted broadly, and found that “Plaintiffs’ athletic achievements and activities are ‘newsworthy’ as contemplated by the statutory exception.” In making this determination, the court was persuaded by “the plethora of media outlets dedicated to the coverage of collegiate sporting events.”

With respect to the public interest exception, the court determined that the defendants’ use of data about the Plaintiffs constituted “reporting” because:

Defendants do provide factual data, and their websites could be used as “reference sources,” either for purposes of playing the associated game, or for information about the collegiate sports and athletes represented on the websites. While that factual data is integrated into a game, the actual names and likenesses identified by Plaintiffs are comprised of information about “real-world” games and players.

The court acknowledged that “this is a close call,” but held that Defendants’ materials constituted “reporting” within the meaning of the Indiana code.

Is Your Fantasy Sports Company Compliant?

The fantasy sports industry, and the laws and regulations that govern it, continue to grow and evolve. It is essential that fantasy sports operators continue to maintain a watchful eye over the developing legal landscape. To effectively navigate this rapidly-changing regulatory framework, operators should work closely with knowledgeable fantasy sports lawyers to regularly review their respective contest platforms, entry fees, prize structures and marketing campaigns.