884 F.3d 672
7th Cir.2018Background
- FanDuel and DraftKings run paid online fantasy-sports contests that use real players' names, images, and game statistics; entrants pay fees and can win cash prizes.
- Former college players sued under Indiana's right-of-publicity statute, alleging defendants used their names, pictures, and statistics without consent.
- The district court dismissed the complaint, relying on statutory exemptions for uses that are "newsworthy" or "in connection with the ... reporting of an event ... of general or public interest."
- Plaintiffs argued the district court misread the exemptions and also contended that defendants' games are unlawful gambling, which would negate the exemptions.
- Defendants argued their operations are lawful and that Indiana's statutory language does not turn on extrinsic questions such as illegality.
- The Seventh Circuit found no Indiana precedent interpreting the key exemption phrases and concluded the ambiguity warranted certification to the Supreme Court of Indiana.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether paid fantasy-sports operators must obtain player consent to use names/pictures/statistics in contests or advertising | Players: Indiana's right-of-publicity protects them; exemptions for "newsworthy" or "reporting" do not cover commercial fantasy contests or related advertising; illegality of contest could negate exemptions | Operators: Their use falls within the statutory "newsworthy" and "reporting" exemptions; contests are lawful and statute does not depend on extrinsic legality questions | Certified to the Indiana Supreme Court for authoritative interpretation; Seventh Circuit declined to decide absent state-law clarification |
Key Cases Cited
- Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015) (video-game right-of-publicity dispute under California law)
- In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013) (discusses right-of-publicity and First Amendment defenses in context of college athletes)
- Baltimore Orioles, Inc. v. Major League Baseball Players Ass'n, 805 F.2d 663 (7th Cir. 1986) (addressed interplay of copyright and right of publicity; noted use of player statistics in marketing can implicate publicity rights)
- Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (Cal. Ct. App. 2001) (state-court treatment of publicity issues involving athletes)
- Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (federal courts must follow state law as the state supreme court would interpret it)