November 2018
Yesterday, the Seventh Circuit affirmed that fantasy sports operators, such as FanDuel and Draft Kings, do not violate a student athlete’s right of publicity under Indiana law by using their name, image and likeness without their consent in the operation of fantasy sports sites. Daniels, et al. v. FanDuel, Inc., et al., No. 17-3051 (7th Cir. Nov. 29, 2018). The Seventh Circuit’s opinion relied upon a certified question that was sent to the Indiana Supreme Court, requesting the interpretation of Indiana’s state law on the right of publicity. The Indiana Supreme Court answered the question and ruled that online fantasy sports operators are permitted to utilize a college athlete’s name, image and likeness without the player’s consent or compensation. The Indiana Supreme Court determined that because the athletes’ information had “newsworthy value,” the use of their name, image and likeness on fantasy sites falls within an exception to Indiana’s right of publicity statute. This opinion demonstrates that the determination of whether there is a right of publicity for the use of the name, image and likeness of an athlete continues to turn on a state-by-state interpretation of right of publicity statutes and in some cases, the state’s common law. 

View the full alert here.