In a landmark decision, the Indiana Supreme Court has ruled that student athletes do not have a right of publicity basis to prevent fantasy sports companies from using their names, pictures and/or statistics without the athletes’ consent under the State’s statute.
Why did the Court find no preemptive right of publicity for athletes featured in fantasy sports contests?
Readers will recall our previous blogs chronicling this class action lawsuit filed by former student-athletes challenging DraftKings and FanDuel’s use of their names, images and on-field statistics on and through the companies’ respective fantasy sports websites and platforms. The companies charge users a fee to access such information which allows them to assess the athletes’ weekly performance and to assemble their virtual fantasy teams. However, the student-athletes claimed that the companies’ use of their names and likenesses to operate and promote the fantasy sports contests without the student-athletes’ consent was a violation of their rights of publicity under Indiana law.
The Indiana Supreme Court disagreed. Despite finding that DraftKings and FanDuel’s use of the student-athletes’ names, images, and likenesses for a commercial purpose without consent fell within the prohibitions of the right of publicity statute, the court determined that the information was sufficiently newsworthy to be exempt from liability under the statutory exception for such material. The Court concluded that the use does not amount to an unauthorized advertisement of the product by the student-athletes. Rather, the Court deemed the use equivalent to newspapers’ use of the such identifying and statistical information. Moreover, the Court was not convinced that application of the newsworthy material exception is limited to organizations in the business of disseminating news because, according to the Court, it is the material itself that determines whether information is newsworthy, not the person publishing it.
Evolution of Fantasy Sports Landscape
The battles over the contours of permissible fantasy sports contests and advertisements continue to rage on even as legalized sports gambling takes root across the country. The student-athletes’ challenge to use of their names and likenesses without consent represented a significant challenge to the standard fantasy sports operating model. In reaching the instant decision, Indiana has taken the lead in recognizing fantasy sports operators’ right to use such athlete-related information without consent or compensation to featured athletes. Future challenges under other states’ right of publicity laws may yield different results. Accordingly, in order to effectively navigate this patchwork and evolving regulatory environment, it is critical that operators work closely with knowledgeable fantasy sports lawyers to regularly review their respective contest platforms, entry fees, prize structures and marketing campaigns.