A federal judge in the Southern District of Indiana has denied the claim of several college football players that the major companies in the Daily Fantasy Sports industry used their names and likenesses in operating and promoting online fantasy sports contests without their consent, thus violating their right of publicity under Indiana law.
In so ruling, the court found that the claims were barred by a series of statutory exceptions, the First Amendment to the United States Constitution, and federal copyright laws.
The plaintiffs in the case were Akeem Daniels, Cameron Stingily, and Nicholas Stoner, all individuals who played football at the collegiate level for institutions governed by the constitution and bylaws of the National Collegiate Athletic Association
The defendants, FanDuel and DraftKIngs, run daily fantasy sports companies that are operated via websites and mobile platforms.
The plaintiffs were featured on the defendants’ sites, but receive no compensation
After the plaintiffs filed their complaint, the defendants moved to dismiss the claim for the aforementioned reasons.
Indiana law 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 from a person specified in section 17 of this chapter.” Ind. Code § 32-36-1-8(a). The statute defines a person’s right of publicity as “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.” Ind. Code § 32-36-1-7. Plaintiffs allege that Defendants have violated Ind. Code § 32-36-1-8(a) by featuring the plaintiffs on their fantasy sports sites.
The defendants moved for dismissal, raising three arguments as to why the plaintiffs’ claims cannot succeed: “(1) that four statutory exceptions remove the subject materials from the coverage of the right-of-publicity statute; (2) that the defendants’ First Amendment rights trump any publicity rights that the plaintiffs may have; and (3) that the plaintiffs’ claims are preempted by federal copyright law.”
The court went to highlight the four statutory exceptions
1. The use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in material that has political or newsworthy value. Ind. Code § 32-36-1-1(c)(1)(B).
2. The use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in connection with the broadcast or reporting of an event or a topic of general or public interest. Ind. Code § 32-36-1-1(c)(3).
3. The use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in literary works. Ind. Code. § 32-36-1-1(c)(1)(A).
4. The use of a personality’s name to truthfully identify the personality as the performer of a recorded performance. Ind. Code § 32-36-1-1(c)(2)(B).
The first exception, in and of itself, was dispositive. “The plaintiffs read the statute more broadly than its plain language allows,” wrote the court. “The statute does not prohibit the use of materials ‘associated with’ the name, likeness, or any other of the enumerated aspects of an individual’s personality—it prohibits the use of the names and likenesses themselves. Adopting the plaintiffs’ reading of the statute would bring an almost limitless universe of materials within its reach, with obvious First Amendment implications. For these reasons, the court concludes that the fictitious salaries and commentary do not constitute a person’s name or likeness, and they are not encompassed within the definition of a person’s right of publicity.
“For these reasons, the court concludes that the materials challenged by the plaintiffs fall within the ‘newsworthiness’ exception to Indiana’s right-of-publicity statute, and therefore the prohibition of using an individual’s right of publicity without his consent does not apply to the defendants’ conduct.”
While the court granted the motion on the above exception, it also went on to look at the other exceptions.
The key interpretation in considering the “public interest exception” to Indiana’s right-of-publicity statute was whether the defendants were “broadcasting or reporting” an event of public interest.
Therefore, the key issue is whether Defendants’ conduct constitutes “broadcasting or reporting” under the statute. Defendants contend that their websites “report” information about college sports, because they profile players on their websites; “corral [the] week’s news, notes and injury updates;” and disseminate performance information. (Filing No. 51 at 10.) The Court notes that this is not all Defendants do with Plaintiffs’ likenesses. In addition, they provide an interactive medium through which players—identified by their names and statistical achievements—may be assembled onto fictitious teams to engage in competition with other fictitious teams. The question is whether that particular use therefore removes Defendants’ conduct from being properly understood as “reporting.”
The court found it instructive to contrast the instant case with In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268, 1271 (9th Cir. 2013), which considered a similar challenge raised by former student athletes to a video game.
In that case, EA Sports was not publishing or reporting factual data. “Here … the 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.
“The court acknowledges that this is a close call. But given Indiana’s interpretive preference to read statutes in a manner that avoids constitutional issues, as well as other Circuits’ reasoning on similar issues, the court concludes that the defendants’ materials constitute ‘reporting,’ as that term is used in Ind. Code § 32-36-1-1(c)(3).”
Turning to the “literary works” exception created by the statute. The court found it premature to make such a ruling without more discovery. Finally, the court denied the defendants attempt to invoke the last exception.
As for the First Amendment defense, the court relied heavily on Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014) and its analytical approach. However, it noted that it did not have the “proper factual and evidentiary basis to conduct such an analysis, and therefore cannot make the threshold determination as to whether the speech at issue should be properly characterized as commercial or non-commercial.” Thus, it denied the defendants’ motion.
Similarly, it denied the defendants’ argument that Indiana’s right-to-publicity statute is preempted by the Copyright Act, finding the defendants application of Toney v. L’Oreal USA, Inc., 406 F.3d 905, 908 (7th Cir. 2005) was misguided.
Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, INC., and Draftkings, INC.; S.D. Ind.; Case No. 1:16-cv-01230-TWP-DKL, 2017 U.S. Dist. LEXIS 162563; 9/29/17
Attorneys of Record: (for plaintiffs) Joseph J. Siprut, Todd L. McLawhorn, PRO HAC VICE, SIPRUT PC, Chicago, IL; Stephen B. Caplin, PROFESSIONAL CORPORATION, Indianapolis, IN; William Clifton Holmes, PRO HAC VICE, THE HOLMES LAW GROUP, LTD, Chicago, IL. (for FANDUEL, INC., defendant) Kenneth L. Doroshow, PRO HAC VICE, JENNER & BLOCK LLP, Washington, DC; Philip R. Zimmerly, Craig Eldon Pinkus, BOSE MCKINNEY & EVANS, LLP, Indianapolis, IN. (for DRAFTKINGS, INC., defendant) Benjamin Margulis, PRO HAC VICE, Damien J. Marshall, BOIES SCHILLER & FLEXNER LLP, New York, NY; John R. Maley, BARNES & THORNBURG LLP (Indianapolis), Indianapolis, IN; Leigh M. Nathanson, PRO HAC VICE, BOIES SHCILLER & FLEXNER LLP, New York, NY.