A New Standard for Right of Publicity Protection for Statistics in the Era of Daily Fantasy Sports and Legalized Sports Betting - A Critique of Daniels v. Fanduel and a Revival of an Economic-Based Rationale to Protect Athletes' Property Rights

Authors

Mark Conrad, Fordham University Gabelli School of Business

Abstract

The Indiana Supreme Court's unanimous decision in Daniels v. FanDuel, addressing whether the use of an athlete 's name and statistical information is subject to a right ofpublicity, has the potential to serve as a persuasive precedent-and formidable obstacle-in future sportsrelated legal matters. Specifically, in rejecting the plaintiff's claim, the court ruled that publicly available statistical information used in a daily fantasy sports game is protected speech under a statutory "newsworthy value" exemption found in the state's right of publicity law. The panel also determined that the use of athletes'names and images are protected as well. On the surface, this decision may seem to be the logical application of a broad exception; however, in actuality it is problematic because it failed to consider the economic underpinnings of the use of that information. It also left some key doctrinal questions unanswered. For example, was the use ofthe publicly available material a commercial use that goes beyond the "newsworthy value " of the material? Should the court have addressed the use ofplayers'images as a separate and distinct component from the use of the statistics? Was the use of the names and statistics commercial enough to override First Amendment issues? While Daniels is a state court case decided under Indiana law, its implications for the future ofmonetizing information in sports can be significant. It also marks a continued retreat from earlier case law that was supportive of athletes' publicity rights in their statistics. This Article outlines the background of right of publicity protection for the use of statistical information, discusses the Daniels case in detail, and argues why the statutory newsworthy value exception should not apply to athletes' names, images, or statistical information in profit-making daily fantasy sports games. Finally, this Article reiterates the author's earlier callfor an appropriate balancing test to weigh the First Amendment rights of daily fantasy sports and gambling firms against the publicity rights of the athletes, and demonstrates how a commercial speech-based rationale results in a more effective approach than the helter-skelter system presently in place.

Disciplines

Entertainment, Arts, and Sports Law | Intellectual Property Law | Law

Recommended Citation

Mark Conrad, A New Standard for Right of Publicity Protection for Statistics in the Era of Daily Fantasy Sports and Legalized Sports Betting - A Critique of Daniels v. Fanduel and a Revival of an Economic-Based Rationale to Protect Athletes' Property Rights, 38 Cardozo Arts & Ent. L.J. 1 (2020).
Available at: https://larc.cardozo.yu.edu/cardozoaelj/vol38/iss1/3