Akeem Daniels, a former Northern Illinois University (“NIU”) football player, recently invoked the Lanham Act in an attempt to force DraftKings and FanDuel (“Defendants”) to share gambling profits with him and other similarly situated college athletes. Mr. Daniels claims the daily fantasy sports leaders’ casino-style gambling operation put him in a state of fear and concern of the risk of being contacted by speculators who have a financial interest in his performance in a particular athletic contest. His fear is understandable after seeing tweets like the following sent to NY Giants running back Brandon Jacobs:

“ON LIFE BRANDON IF YOU DON’T RUSH FOR 50 YARDS AND TWO TOUCHDOWNS TONIGHT ITS OVER FOR YOU AND YO FAMILY N—.”

Unfortunately (or fortunately, depending on your thoughts about paying college athletes), it is unlikely that the current law will support monetary relief or a change in Defendants’ business practices.

Mr. Daniels is seeking class-action status in a lawsuit based on false designation of origin under §43(a)(1) of the Lanham Act, infringement of his right of publicity under Massachusetts law and unjust enrichment under common law. Specifically, Mr. Daniels argues that:

1. Defendants profit from the services of the college players without compensation, and such acts are likely to cause consumers to be confused as to the source or sponsorship of such services.
2. Defendants profit from the names and likenesses of the college players without providing due compensation.

Mr. Daniels is not a celebrity, so it is unlikely that he has a trademark interest in his name to support a cause of action for confusion as to source, affiliation, sponsorship or approval under §43(a)(1)(A). Even if he is a celebrity with a trademark interest in his name, such an interest would likely be trumped by Defendants' First Amendment rights.

In Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003), Rosa Parks sued Outkast for using her name as the title of their song "Rosa Parks." In balancing the defendants' First Amendment interests against Parks' interests under §43(a)(1)(B) of the Lanham Act, the Sixth Circuit relied on the Rogers v. Grimaldi  test. Under Rogers, “a title will be protected unless it has ‘no artistic relevance’ to the underlying work or, if there is artistic relevance, the title ‘explicitly misleads as to the source or the content of the work.’" Id. at 448 (quoting Rogers, 875 F.2d at 999).

Here, Mr. Daniels' name is relevant to the underlying work (the fantasy sports games), use of Mr. Daniels' name does not explicitly mislead as to the source of the work, and such use does not explicitly suggest that the work was produced by Mr. Daniels.

In fact, Defendants' services are distinct from the athletic performance services Mr. Daniels provided to NIU in exchange for an education, so it is unclear how Defendants could have offered their customers the opportunity to purchase Mr. Daniels' services. Mr. Daniels does not offer a fantasy sports gaming system/platform for sale, nor does he record and sell proprietary statistical information generated by his on-field performances. Defendants are simply plugging information from the public domain into their fantasy sports system and using such information as facts — not as a source identifier.

Additionally, Defendants’ use of publicly available sports statistics in connection with Mr. Daniels name might not be an infringement of Mr. Daniels' right of publicity. In C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818 (8th Cir. 2007) C.B.C., a producer of fantasy major league baseball games sought declaratory judgment that it had a right to make unlicensed use of names and statistics of players in its games. In its consideration of Missouri law, the Eighth Circuit ruled in favor of C.B.C., concluding that "the information used in CBC's fantasy baseball games is all readily available in the public domain, and it would be strange law that a person would not have a first amendment right to use information that is available to everyone." Id. at 823.

Mr. Daniels' asserts that there is an absence of material differences in the statutes upon which his and potential class members' claims are based; however, that is not the case. In C.B.C. Distribution and Marketing, Inc., the Eighth Circuit considered the Missouri right of publicity statute and concluded that the statute was not intended to prevent C.B.C.'s First Amendment right to use names and statistics publicly available for everyone.

Here, Mr. Daniels asserts his right of publicity claim under Massachusetts law (Mass. Gen. Laws ch. 214, Section 3A), where liability is liberally applied to defendants who use a person's name, portrait or picture for advertising purposes or for the purposes of trade without written consent.

Other states have more forgiving right of publicity laws. For example, Indiana's right of publicity law (IN ST 32-36-1-1) does not protect the use of a personality (generally defined as a living or deceased person whose name, voice, signature, photo, image, likeness, distinctive appearance, gesture or mannerisms has commercial value) in connection with the broadcast or reporting of an event or a topic of general or public interest. Ohio’s law (ORC Chapter 2741) permits the use of an athlete’s persona in a “sports broadcast, or account” or in “audiovisual” materials.

Massachusetts’ and Indiana’s right of publicity laws are on opposite ends of the spectrum. Ohio’s law is closer to Indiana. Anyone residing in Massachusetts has publicity rights, regardless of their celebrity status; however, Indiana and Ohio law generally allow the use of a celebrity's likeness if such use is in connection with a broadcast or reporting of an event or topic of public interest. Therefore, it is likely that Defendants' reports/broadcasts of Mr. Daniels' injury status and statistical information would be lawful in Indiana and Ohio, while use of Mr. Daniels' name during the "purchasing" process could be unlawful. However, Indiana's and Ohio’s intent to protect the broadcast of information relevant to the public (like college sports news and information) likely favors a First Amendment ruling similar to that in C.B.C. Distribution and Marketing, Inc.; whereas, Massachusetts' intent to broadly protect everyone's publicity rights could tip the scales in the opposite direction. Taft's Intellectual Property group will apprise you of any updates on this interesting case.