December 31, 2018

Newsworthy Exception To Right-To-Publicity Statute Must Be Read Broadly; Daniels v. FanDuel, Inc.

Category: Indiana Law Review | Author: | Share:

Indiana has a right of publicity statute that protects people against having themselves used for commercial purposes without written consent. The question posed in this case is whether fantasy-sports operators violate this statute when using athletes’ names, pictures, and statistics as a part of their business. The Court found that it did not, because the information these companies were using had “newsworthy value.”

The plaintiffs in this case were collegiate student-athletes. DraftKings and FanDuel, two online fantasy sports businesses, collected the plaintiffs’ information and charged customers a fee to access it. Customers could then use this information as part of their fantasy sports activities.

The plaintiffs filed a class action alleging that these companies were violating the right of publicity statute. The case was removed to federal court. The district court dismissed the case, and the plaintiffs appealed. The Seventh Circuit then certified the following question:

Whether 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 had not interpreted the right of publicity statute before this case. So it focused on the language of the statute and its “newsworthy value” exception.

The statute protects all “aspect[s] 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.” The statute defines the information that is protected as someone’s (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gestures; or (9) mannerisms.

There are a number of exceptions to this statute, at least one of which was relevant to this case—the “newsworthy value” exception. If the use falls within this exception, then no consent is needed for the use of this information for commercial purposes.

The statute does not define “newsworthy value,” so the Court had to construe that phrase. It noted that this exception was not limited to media companies or news broadcasters; rather, its application is based on the nature of the information. Looking to the common law, the Court noted that courts had applied “newsworthy” broadly when dealing with First Amendment issues.

Considering the genesis and evolution of the right of publicity, and presuming the General Assembly was aware of the right of publicity, its origins, and the definitions available from caselaw in this area, we find that the term “newsworthy” was meant to be construed broadly.

A broad construction also helps avoid First Amendment issues in parsing acceptable forms of speech.

The Court found that the defendants’ use of the plaintiffs’ information “bears resemblance to the publication of the same information in newspapers and websites across the nation. … This 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.” Therefore, it did not violate the statute for the defendants to have this information behind a paywall.

As for the use of this information in advertising, the Court found it “difficult” to conclude that anyone would see an athlete’s image or name on fantasy sports advertising as that athlete’s endorsement of the company. But whether unauthorized endorsements were actually being made is a factual matter that the Court left “to our federal colleagues.”

Lessons:

  1. The right to publicity statute protects unauthorized commercial use of certain aspects of a person.
  2. This statute does not apply if the information is newsworthy.
  3. Whether information is newsworthy depends on its nature, not who is using it, and must be construed broadly.