David, J.
Indiana’s right of publicity statute provides, “a person may not use an aspect of a personality’s right of publicity for a commercial purpose… without having obtained previous written consent.” Ind. Code § 32-36-1- 8(a). Pursuant to Indiana Appellate Rule 64, our Court accepted a certified question from the United States Court of Appeals for the Seventh Circuit, which asked:
Daniels v. FanDuel, Inc., No. 18S-CQ-00134, __ N.E.3d __ (Ind., Oct. 24, 2018).
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.
In short, we answer this question narrowly and find online fantasy sports operators that condition entry to contests on payment and distribute cash prizes do not violate the Indiana right of publicity statute when those organizations use the names, pictures, and statistics of players without their consent because the use falls within the meaning of “material that has newsworthy value,” an exception under the statute.
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The parties in this case ask us to consider a wide range of issues touching on the right of publicity and its implications in our State. We recognize at the onset that our decision will carry considerable weight not only with respect to these parties, but for other potential right of publicity litigants in our state courts. We also understand that certain factual determinations and allegations remain unresolved and are squarely within the jurisdiction of our federal colleagues. We therefore proceed cautiously, maintaining a narrow focus on the question before us.
To maintain this narrow focus, we begin with a brief overview of the statutory scheme for the right of publicity. We then examine in detail the “newsworthy value” exception to the statute, finding that certain principles of statutory construction inform our reading of that exception. Through this lens, we next analyze the spectrum of “material that has newsworthy value” to evaluate the parties’ arguments. The conclusions we draw from this analysis lead to the ultimate result that the use of players’ names, pictures, and statistics in fantasy sports contests do not violate the right of publicity in Indiana.
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Considering the arguments presented in this case, Defendants’ 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. We agree that, “it would be strange law that a person would not have a first amendment right to use information that is available to everyone.” C.B.C. Distribution and Marketing, Inc. v. Major League Baseball, 505 F.3d 818, 823 (8th Cir. 2007).
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. On the contrary, fantasy sports operators use factual data combined with a significant, creative component that allows consumers to interact with the data in a unique way. Although fictional salary values are assigned to players, this does not change the function of the underlying data. 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.”
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In the context of fantasy sports, however, courts have recently concluded the risk of unauthorized advertising is minimal. See C.B.C. Distrib., 505 F.3d at 824 (holding that the use of statistics and likenesses of baseball players in a fantasy sports context does not implicate a right of publicity in terms of advertising “because the fantasy baseball games depend on the inclusion of all players and thus cannot create a false impression that some particular player with ‘star power’ is endorsing CBC’s products.”); CBS Interactive, 259 F.R.D. at 419 (reasoning that “[n]o one seriously believes that the subjects of news reports are endorsing the company that provides the report”). We embrace this understanding and find that under similar circumstances—when informational and statistical data of college athletes is presented on a fantasy sports website—it would be difficult to draw the conclusion that the athletes are endorsing any particular product such that there has been a violation of the right of publicity. Importantly, however, this finding does not foreclose a court from closely scrutinizing the actions of a particular defendant to ensure no unauthorized endorsements are being made. At the risk of overstepping the bounds of the certified question, we defer making any factual determination on this issue to our federal colleagues.
Conclusion
We conclude 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.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.