Plaintiff-Appellants Akeem Daniels, Cameron Stingily, and Nicholas Stoner were collegiate student–athletes between 2014-2016.  Their on-field performances were collected as numerical statistics and published by various fantasy sports website operators including Defendants-Appellees DraftKings, Inc. and FanDuel, Inc.  For a fee, consumers could access detailed information such as Plaintiffs’ names, images, and statistics, assess the athletes’ weekly performances, and assemble a virtual team of real-life athletes to compete against other users’ teams on Defendants’ websites.

Plaintiffs filed a class action in Indiana alleging that Defendants “used their names and likenesses in operating and promoting online fantasy sports contests without Plaintiffs’ consent, in violation of their right of publicity.”  Defendants removed the case to the U.S. District Court for the Southern District of Indiana and moved to dismiss, arguing that Plaintiffs failed to state a claim because the use of Plaintiffs’ names and statistics fell under certain statutory exceptions to the right of publicity.  The District Court dismissed the suit, finding no violation of Plaintiffs’ right of publicity because the use of their likenesses was in material that had newsworthy value and was a matter of public interest under the exceptions to the Indiana right of publicity statute.  Plaintiffs appealed to the Seventh Circuit Court of Appeals, which certified the question of Indiana law to the Court in Daniels v. FanDuel, Inc., 884 F.3d 672, 674 (7th Cir. 2018).

On October 24, 2018, the Indiana Supreme Court answered the certified question from the U.S. Court of Appeals for the Seventh Circuit asking, “[w]hether 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 Indiana Supreme Court answered that “online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.”

Indiana’s right of publicity statute provides that “a person may not use an aspect of a personality’s right of publicity for a commercial purpose without having obtained previous written consent.”  Ind. Code § 32-36-1- 8(a).  Indiana law defines the scope of a person’s right of publicity as a personality’s property interest in his/her (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gestures; or (9) mannerisms.  Ind. Code § 32-36-1-7.  The law exempts such claims when the material has “political or newsworthy” value.  The Court focused on the scope of this exception.

In its decision, the Indiana Supreme Court maintained a narrow focus on the certified question by limiting its opinion to the “newsworthy value” exception.  Specifically, the Court analyzed the spectrum of “material that has newsworthy value” and concluded that the use of players’ names, pictures, and statistics in fantasy sports contests does not violate the right of publicity in Indiana.

On the question of newsworthiness, the Court rejected Plaintiffs’ arguments that the statutory exception for newsworthiness does not apply in the context of commercial use.  First, the Court found that the statute itself does prohibit the use of a person’s right of publicity “for a commercial purpose” and therefore, the Court declined to read such a requirement into the otherwise clear language of the statute.  Second, the Court held that whether Defendants are media companies or news broadcasters is immaterial in the context of the newsworthiness exception.  The plain language of the statute only speaks to the use of a personality’s right of publicity in “[m]aterial that has political or newsworthy value.”  Ind. Code § 32-36-1-1(c)(1)(B).  Finally, the Court noted that Plaintiffs’ information is not stripped of its newsworthy value simply because it is placed behind a paywall or used in the context of a fantasy sports game.  “On the contrary, fantasy sports operators use factual data combined with a significant, creative component that allows consumers to interact with the data in a unique way” and “Defendants’ use of the players’ names, images, and statistics in conducting fantasy sports competitions bears resemblance to the publication of the same information in newspapers and websites across the nation.”  The Court agreed with Defendants that, “it would be strange law that a person would not have a first amendment right to use information that is available to everyone.”  Thus, the Court held that Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy sports.  The case is Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, Inc. and DraftKings, Inc., 18S-CQ-134.