109 N.E.3d 390
Ind.2018Background
- Plaintiffs (college athletes Daniels, Stingily, Stoner) alleged DraftKings and FanDuel used their names, images, and statistics in pay-to-enter fantasy-sports contests that awarded cash prizes without consent, violating Indiana’s right of publicity statute.
- Defendants ran paid fantasy contests that used publicly available player names, photos, and stats, assigned fictional salaries, applied salary caps, and awarded cash prizes based on players’ real-world performance.
- Plaintiffs sued in state court; the case was removed to federal court where the district court dismissed, holding the uses fell within the statute’s “newsworthy value” exception; the Seventh Circuit certified the question to the Indiana Supreme Court.
- The certified question: do paid, cash-prize fantasy operators need player consent to use players’ names, pictures, and statistics in contests, in advertising, or both?
- The Indiana Supreme Court focused narrowly on the newsworthy-value exception and concluded the use in the fantasy contests falls within that exception, so no consent was required under the statute.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether consent is required for use of player names/photos/stats in paid, cash-prize fantasy contests | Plaintiffs: right of publicity prohibits commercial use without prior written consent | Defendants: use falls within statutory exceptions (newsworthy/public interest); no consent required | Held: No consent required — use falls within "material that has newsworthy value" exception |
| Whether the newsworthy-value exception applies when use is commercial or behind a paywall | Plaintiffs: exception should not cover commercial uses or paywalled content | Defendants: exception covers material with newsworthy value regardless of commercial context or paywall | Held: Exception applies despite commercial purpose or paywall; statute’s text controls |
| Whether only traditional media/news organizations can invoke the newsworthy-value exception | Plaintiffs: implied restriction that news entities only should benefit | Defendants: statute’s exception is not limited to media companies | Held: No media-entity limitation; who publishes is irrelevant under the plain text |
| Whether use in advertising or promotion could fall outside newsworthy exception (unauthorized endorsement) | Plaintiffs: using players to promote product could be non-newsworthy and violate publicity rights | Defendants: fantasy play is informational and not an endorsement; risk of unauthorized endorsement is minimal | Held: Use in contest context not treated as advertising/endorsement here; courts should scrutinize particular factual presentations, but no endorsement found as a matter of law on certified question |
Key Cases Cited
- Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (U.S. 1977) (state right of publicity does not always yield to newsgathering; broadcasting entire performance without consent can violate publicity right)
- Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) (recognizing a commercial "right of publicity" in a person’s photograph)
- C.B.C. Distribution & Marketing, Inc. v. Major League Baseball, 505 F.3d 818 (8th Cir. 2007) (use of player names/stats in fantasy baseball did not create a publicity claim because inclusion of all players does not imply endorsement)
- Abdul‑Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) (unauthorized use of a celebrity’s identity in advertising can state a right-of-publicity claim)
- Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996) (discussing publicity rights as property in commercial value; parody/context can affect First Amendment analysis)
- Time, Inc. v. Sand Creek Partners, L.P., 825 F. Supp. 210 (S.D. Ind. 1993) (broad, liberal understanding of the "newsworthy" privilege under Indiana law)