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Daniels v. Fan Duel - Another freedom of speech win for the fantasy sports industry

Fantasy sports with multisport background
Friday, 14 December 2018 By Richard L. Brand, Glenn C. Colton, Jennifer O’Sullivan, Michelle Mancino Marsh, Melissa A. Trenk

Late last month, in Daniels v. Fan Duel1, the Indiana Supreme Court sided with the fantasy sports industry holding that the use of the names, pictures, and statistics of athletes by online-fantasy sports operators without the athletes’ consent does not violate the right of publicity under Indiana law because such use falls within the “newsworthy value” exception to the statute. 

While the precise effect of this decision will play out in the coming months and years, we believe there are three key takeaways:

  • First, the Indiana Supreme Court reaffirmed the ability of online-fantasy sports operators to utilize the names and statistics of athletes without their consent, further fortifying a landmark Eighth Circuit decision from 11 years ago. 

  • Second, the Daniels decision appears to extend that Eighth Circuit ruling by specifying that freedom of speech trumps the right of publicity at least insofar as it pertains to the manner in which athletes’ pictures are used in online fantasy sports contests. 

  • Finally, the logical extension of the Daniels decision is that operators of online sites that offer traditional gambling should be able to enjoy the same freedom of speech protections and thus should be able to make similar uses of athletes’ names, statistics, and pictures.

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Written by

Richard Brand

Richard L. Brand

Rich is the Arent Fox Schiff's San Francisco Managing Partner and Head of the Sports group.

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Glenn Colton

Glenn C. Colton

Glenn Colton is a partner in Arent Fox’s New York office where he focuses on white collar criminal and complex civil litigation, as well as government and internal investigations. Glenn represents clients in investigations and actions brought or conducted by Federal, State and local authorities including the US Department of Justice, US attorneys' offices, the Securities and Exchange Commission, the Commodity Futures Trading Commission, state attorneys general and local district attorneys. Drawing on his nearly 10-year tenure as an Assistant US attorney in both the criminal and civil divisions in the Southern District of New York, Glenn represents a variety of companies, ranging from Fortune 500 to private companies, and individuals in complex civil litigation in state and federal courts throughout the country.

Jennifer O’Sullivan

Jennifer O’Sullivan

Jennifer O’Sullivan is a partner in Arent Fox’s Sports group where she serves as a trusted advisor to sports leagues, teams, and media and technology companies. She specializes in the representation of professional sports leagues, teams, media and technology companies, investors, promoters, hospitality companies and sports, entertainment, and lifestyle agencies. Jennifer counsels sports and entertainment clients on issues ranging from mergers and acquisitions and other transactions to sponsorships, advertising, media matters, league formations and restructurings, and all forms of commercial agreements, including licensing, merchandising and promotional agreements, venue, vendor, and other special events agreements.

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Michelle Mancino Marsh

Michelle Mancino Marsh

Partner, Arent Fox

Michelle has built an impressive track-record practicing in trademark, copyright, patent, unfair competition/false advertising, anti-counterfeiting/anti-piracy, internet, and fashion and wearable technology law.

Melissa A. Trenk

Melissa A. Trenk

Associate, Arent Fox

Melissa is an associate in the White Collar group at Arent Fox.

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