Katie Stancombe for www.theondianalawyer.com

The Indiana Supreme Court answered a certified question posed by the 7^th Circuit Court of Appeals on how Indiana’s right-to-publicity statute affects the fantasy sports industry, finding sites such as DraftKings and FanDuel are shielded by an exception for material with newsworthy value.

Justices ruled in Akeem Daniels, Cameron Stingily, and Nicholas Stoner v. FanDuel, Inc. and DraftKings, Inc., 18S-CQ-134 on Wednesday, answering the question of 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 7^th Circuit Court requested guidance in March.

Former Indiana University receiver Nick Stoner joined ex-University of Northern Illinois players Akeem Daniels and Cameron Stingily in suing two daily fantasy sports sites. They claimed DraftKings and FanDuel used their names and likenesses without their consent, and they sought damages under Indiana’s right-of-publicity statute.

The athletes alleged Indiana’s law gave them control over the commercial use of their names, but the Indiana Southern District Court disagreed and dismissed their case.

On Wednesday, the high court concluded that Indiana’s right of publicity statute contains an exception for material with newsworthy value that includes online fantasy sports operators’ use of college players’ names, pictures, and statistics for online fantasy contests.  Justices noted the “considerable weight” of its ultimate decision, prompting its cautiously narrow focus.

“We begin by addressing two arguments advanced by plaintiffs in this case. First, we are not persuaded that the statutory exception for newsworthiness does not apply in the context of commercial use,” Justice Steven David wrote for the court. “The statute itself does prohibit the use of a person’s right of publicity ‘for a commercial purpose.’”

“Second, whether Defendants are media companies or news broadcasters is immaterial in the context of the newsworthiness exception. The plain language of the statute only speaks to the use of a personality’s right of publicity in ‘[m]aterial that has political or newsworthy value,’” David continued. “The statute is silent on whether there are any restrictions on who publishes or uses the material. Conversely, there is a different exception that applies specifically to a ‘news reporting or an entertainment medium.’

“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.”

The high court determined that based on arguments presented in the case, the fantasy sports sites’ use of players’ names, images, and statistics in conducting fantasy sports competitions “bears resemblance to the publication of the same information in newspapers and websites across the nation.” Therefore, it would be “strange law that a person would not have a first amendment right to use information that is available to everyone.”

“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,” the court wrote. “It is difficult to find that the use of this otherwise publicly available information is somehow drastically different such that it should be placed outside the definition of ‘newsworthy.’”

Regarding the argument of advertisement, the high court deferred making any factual determination to its federal colleagues at the risk of overstepping the bounds of the certified question.