Indiana Supreme Court to Decide Fantasy Sports Publicity Rights Issue

The Supreme Court of Indiana accepted a certified question from the U.S. Court of Appeals for the Seventh Circuit involving the interpretation of the state’s right-of-publicity statute, Indiana Code §32-36-1, in fantasy sports settings. Daniels v. FanDuel Inc., 18S-CQ-00134.

The question is: “Whether 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.”

The U.S. District Court for the Southern District of Indiana decided that the newsworthiness and public interest exceptions to Indiana’s right-of-publicity statute applied to online fantasy sports companies that use college athletes’ names and likenesses. Daniels v. FanDuel Inc., 1:16-cv-01230 (S.D.Ind. 2017).

The Eleventh Circuit noted: “Plaintiffs maintain in this court that the district judge misunderstood the scope of these exemptions — indeed, erred even in asking what the exemptions mean. According to plaintiffs, [defendants] FanDuel and DraftKings are illegal gambling enterprises to which none of the statutory exemptions applies. Defendants reply that their operations are lawful and that at all events none of the language in the right-of-publicity statute makes anything turn on a question extrinsic to the right-of-publicity law itself.”