Daniels v. FanDuel (7th Cir.)

Case: 17-3051 Document: 14 Filed: 11/14/2017 Pages: 93
No. 17-3051
IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
AKEEM DANIELS, CAMERON STINGILY, NICHOLAS STONER,

Individually and on Behalf of All Others Similarly Situated,
Plaintiffs-Appellants,
v.
FANDUEL, INC., AND DRAFTKINGS, INC.,

Defendants-Appellees.
On Appeal from the United States District Court

Southern District of Indiana Indianapolis Division
No. 1:16-cv-1230
The Honorable Tanya Walton Pratt
PLAINTIFFS-APPELLANTS BRIEF
W. Clifton Holmes Todd L. McLawhorn Stephen B. Caplin

THE HOLMES LAW GROUP, LTD. SIPRUT PC STEPHEN B. CAPLIN
350 N. Orleans St. 17 North State Street PROFESSIONAL
Suite 9000N Suite 1600 CORPORATION
Chicago, IL 60654 Chicago, IL 60602 9245 North Meridian Street,
(312) 721-0779 312-236-0000 Suite 301
holmes@theholmeslawgroup.com tmclawhorn@siprut.com Indianapolis, IN 46260
(317) 815-8600
sbcaplin@gmail.com
Counsel for Plaintiffs-Appellants and the Proposed Putative Class
Case:
Case:17-3051
17-3051 Document:
Document:14
5 11/14/2017
Filed: 10/19/2017 93
Pages: 2
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT
Appellate Court No: 17-3051
Short Caption: Daniels, et al. v. FanDuel, Inc., et al.
To enable the judges to determine whether recusal is necessary or appropriate, an attorney for a non-governmental party or
amicus curiae, or a private attorney representing a government party, must furnish a disclosure statement providing the
following information in compliance with Circuit Rule 26.1 and Fed. R. App. P. 26.1.
The Court prefers that the disclosure statement be filed immediately following docketing; but, the disclosure statement must
be filed within 21 days of docketing or upon the filing of a motion, response, petition, or answer in this court, whichever occurs
first. Attorneys are required to file an amended statement to reflect any material changes in the required information. The text
of the statement must also be included in front of the table of contents of the party's main brief. Counsel is required to
complete the entire statement and to use N/A for any information that is not applicable if this form is used.
[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED

AND INDICATE WHICH INFORMATION IS NEW OR REVISED.
(1) The full name of every party that the attorney represents in the case (if the party is a corporation, you must provide the
corporate disclosure information required by Fed. R. App. P 26.1 by completing item #3):
Akeem Daniels, Cameron Stingily, Nicholas Stoner
(2) The names of all law firms whose partners or associates have appeared for the party in the case (including proceedings
in the district court or before an administrative agency) or are expected to appear for the party in this court:
Stephen B. Caplin Professional Corporation, The Holmes Law Group, Ltd., Siprut PC, Agrawal Evans LLP
(3) If the party or amicus is a corporation:

i) Identify all its parent corporations, if any; and
N/A
ii) list any publicly held company that owns 10% or more of the partys or amicus stock:
N/A
Attorney's Signature: s/ W. Clifton Holmes Date: 10/19/2017

Attorney's Printed Name: W. Clifton Holmes
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address: The Holmes Law Group, Ltd.

350 N. Orleans St., Suite 9000N, Chicago, IL 60654
Phone Number: 312-721-0779 Fax Number: N/A
E-Mail Address: holmes@theholmeslawgroup.com
rev. 01/ *$
Case:
Case:17-3051
17-3051 Document:
Document:14
5 11/14/2017
Filed: 10/19/2017 93
Pages: 2
CERTIFICATE OF SERVICE
Certificate of Service When All Case Participants Are CM/ECF Participants
I hereby certify that on ___________________, I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Seventh Circuit by using
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.
s/__________________________________

Certificate of Service When Not All Case Participants Are CM/ECF Participants
October 19, 2017
the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.
I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:
counsel / party: address:

Craig Eldon Pinkus, Bose McKinney Evans/FanDuel, Inc. 111 Monument Circle, Ste. 2700, Indianapolis, IN 46204
_____________________________________ _____________________________________
Philip R. Zimmerly, Bose McKinney Evans/FanDuel, Inc. 111 Monument Circle, Ste. 2700, Indianapolis, IN 46204
_____________________________________ _____________________________________
Kenneth L. Doroshow, Jenner & Block/FanDuel, Inc. 1099 New York Ave., NW, Ste. 900, Washington, DC 20001
_____________________________________ _____________________________________
John R. Maley, Barnes & Thornburg/DraftKings, Inc. 11 S Meridian St., Indianapolis, IN 46204
_____________________________________ _____________________________________
Benjamin Margulis/DraftKings, Inc. Boies Schiller Flexner, 575 Lexington Ave., New York, NY 10022
_____________________________________ _____________________________________
Leigh M. Nathanson/DraftKings, Inc. Boies Schiller Flexner, 575 Lexington Ave., New York, NY 10022
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
W. Clifton Holmes
s/__________________________________
Case:
Case:17-3051
17-3051 Document:
Document:14
4 Filed: 10/19/2017
11/14/2017
CIRCUIT RULE 26.1 DISCLOSURE STATEMENT
Pages: 2
93

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED
Stephen B. Caplin Professional Corporation, The Holmes Group, Ltd., Siprut PC, Agrawal Evans LLP

N/A
N/A
Attorney's Signature: s/ Todd L. McLawhorn Date: October 19, 2017

Attorney's Printed Name: Todd L. McLawhorn
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No X
Address: 17 North State Street, Suite 1600
Chicago, IL 60602
Phone Number: 312-236-0000 Fax Number: 312-754-9616
E-Mail Address: tmclawhorn@siprut.com
rev. 01/08 AK
Case:
Case:17-3051
17-3051 Document:
Document:14
4 Filed: 10/19/2017
11/14/2017 Pages: 2
93
H 0123454063185912
401
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6;++++++++++++++++++++++++++++++++++
Case:
Case:17-3051
17-3051 Document:
Document:14
7 11/14/2017
Filed: 10/24/2017 93
Pages: 2
$33($5$1&( CIRCUIT RULE 26.DISCLOSURE STATEMENT
[] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED

Stephen B. Caplin Professional Corporation, The Holmes Law Group, Ltd., Siprut PC, Agrawal Evans LLP

N/A
N/A
Attorney's Signature: s/Stephen B. Caplin Date: 10/18/2017

Attorney's Printed Name: Stephen B. Caplin
Please indicate if you are Counsel of Record for the above listed parties pursuant to Circuit Rule 3(d). Yes No
Address: 9245 North Meridian Street, Suite 301 (NEW)

Indianapolis, IN 46260
Phone Number: (317) 815-8600 (NEW) Fax Number: N/A
E-Mail Address: sbcaplin@gmail.com
rev. 01/ *$
Case:
Case:17-3051
17-3051 Document:
Document:14
7 11/14/2017
Filed: 10/24/2017 93
Pages: 2
Certificate of Service When All Case Participants Are CM/ECF Participants
the CM/ECF system. I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the CM/ECF system.
s/__________________________________

Certificate of Service When Not All Case Participants Are CM/ECF Participants
October 24, 2017
the CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the CM/ECF
system.
I further certify that some of the participants in the case are not CM/ECF users. I have
mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third-party commercial carrier for delivery within 3 calendar days, to the following
non-CM/ECF participants:
counsel / party: address:

Damien J. Marshall BOIES SCHILLER & FLEXNER, LLP, 575 Lexington Ave, NY, NY
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
_____________________________________ _____________________________________
Stephen B. Caplin
s/__________________________________
TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii
I. JURISDICTIONAL STATEMENT ........................................................................................... 1
II. STATEMENT OF THE ISSUES .............................................................................................. 2
III. STATEMENT OF THE CASE .................................................................................................2
A. Facts Relevant to Issues Raised on Appeal .................................................................... 2
B. Procedural History and Rulings Relevant To This Appeal .......................................... 6
IV. SUMMARY OF THE ARGUMENT .......................................................................................7
V. STANDARD OF REVIEW .......................................................................................................9
VI. ARGUMENT..........................................................................................................................10
A. The District Court wrongly held that the Indiana statutory exceptions apply
to illegal conduct ............................................................................................................ 10
1. The scope of the Indiana statute, and the rights conferred, are broad ................ 10
2. Plaintiffs plead violations of the statute ............................................................. 11
3. The District Court erred in failing to consider the illegality of

Defendants college sports gambling contests ................................................... 13
A. Where the speech at issue is integral to criminal conduct, there

are no defenses grounded in the First Amendment to invoke ................. 14
1. Indiana Case Law ........................................................................... 16
2. Defendants Admissions................................................................. 19
3. The Plain Language of the Statute ..................................................20
B. Defendants speech and conduct were illegal under Indiana

law, and integral to the illegality of their gambling contests .................. 21
1. Defendants Conduct Was Illegal................................................... 22
a. Defendants contests involved an element of

chance within the meaning of IC 35-45-5-1(d) .................. 24
b. Extensive precedent confirms the illegality of

Defendants speech and conduct ........................................... 25
c. The Indiana Gaming Commission confirmed

Defendants conduct was illegal ........................................... 26
2. Defendants speech was integral to the illegality of their

gambling contests ............................................................................27
B. The District Court incorrectly held that the newsworthy exception of the
Indiana statute applies to Defendants speech and conduct. .......................................... 28
C. The District Court incorrectly held that the public interest exception of the
Indiana statute applies to Defendants speech and conduct. .......................................... 36
D. The District Court erred in denying Plaintiffs motion for leave to file
surreply .......................................................................................................................... 40
CONCLUSION ..............................................................................................................................41
CERTIFICATE OF COMPLIANCE .............................................................................................43
ii
TABLE OF AUTHORITIES
CASES
Abdul-Jabbar v. General Motors Corp.,

75 F.3d 1391 (9th Cir. 1996) ................................................................................. 33, 34, 38
Ashlin Transp. Services, Inc. v. Indiana Unemployment Ins. Bd.,

637 N.E.2d 162 (Ind. Ct. App. 1994)................................................................................ 28
Baltimore Orioles v. Major League Baseball Players Ass'n,

805 F.2d 663 (7th Cir. 1986), cert. den. 480 U.S. 941 (1987)................................... passim
Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007) .............................................................................................................9
Bolger v. Youngs Drug Prods. Corp.,

463 U.S. 60 (1983) ............................................................................................................ 18
Bonte v. U.S. Bank, N.A.,

624 F.3d 461 (7th Cir. 2010) .............................................................................................. 9
C.B.C. Distribution and Marketing v. Major League Baseball Advanced Media, L.P.,
505 F.3d 818 (8th Cir. 2007) ............................................................................................ 35
Central Hudson Gas Electric Corporation v. Public Service Commn of New York,
447 U.S. 557 (1980) ...........................................................................................................14
Clark v. United States,

289 U.S. 1 (1932) ...............................................................................................................19
Davis v. Electronic Arts, Inc.,

775 F.3d 1172 (9th Cir. 2015), cert denied, 136 S. Ct. 1448 (2016) ............................36, 38
Dillinger, LLC v. Electronic Arts Inc.,

795 F. Supp. 2d 829 (S.D. Ind. 2011) ................................................................................21
Donovan v. Grand Victoria Casino & Resort,

915 N.E.2d 1001 (Ind. Ct. App. 2009) ............................................................................. 22
Ex parte Dupre,
143 U.S. 110 (1892) .................................................................................................... 14, 17
iii
Fraley v. Facebook,
830 F. Supp. 2d 785 (N.D. Cal. 2011) ...............................................................................35
Giboney v. Empire Storage & Ice Co.,

336 U. S. 490 (1949) .................................................................................................. passim
Gold v. Wolpert,
876 F.2d 1327 (7th Cir. 1989) ...........................................................................................40
Green v. State,
257 Ind. 244, 274 N.E.2d 267 (Ind. 1971) .........................................................................19
Helton v. State,
624 N.E.2d 499 (Ind. Ct. App. 1993).................................................................................17
Hilton v. Hallmark Cards,

599 F.3d 894 (9th Cir. 2010) .............................................................................................36
Indiana Bell Telephone Co., Inc. v. Indiana,

402 N.E.2d 962, 273 Ind. 120 (Ind. 1980) .........................................................9, 16, 17. 39
In re NCAA Student-Athlete Name & Likeness Licensing Litigation,

724 F.3d 1268 (9th Cir. 2013) ............................................................................... 35, 37, 38
Jordan v. Jewel Food Stores, Inc.,

743 F.3d 509 (7th Cir. 2014) .................................................................................12, 34, 41
Lahr v. State,
731 N.E.2d 479 (Ind. Ct. App. 2000).................................................................................19
L.E. Services, Inc. v. State Lottery Com'n,

646 N.E.2d 334 (Ind. Ct. App. 1995)......................................................................... passim
McClanahan v. Remington Freight Lines,

517 N.E.2d 390 (Ind. 1988) ...............................................................................................19
Meraz-Camacho v. United States,

417 F. Appx 558 (7th Cir. 2011) (unpublished) ...............................................................40
National Shopmen Pension Fund v. DISA Indus., Inc.,

653 F.3d 573 (7th Cir. 2011) ..............................................................................................10
iv
Near v. Minnesota,
283 U.S. 697 (1931) ......................................................................................................... 14
Orr v. Westminster Village N., Inc.,

689 N.E.2d 712 (Ind. 1997). ........................................................................................ 18-19
Palmer v. Schonhorn Enters., Inc.,

232 A.2d 458 (N.J. Super. Ct. 1967) ................................................................................ 33
Posadas De Puerto Rico Ass'n v. Tourism Co.,

478 U.S. 328 (1986) .....................................................................................................14, 17
Price v. State,
622 N.E.2d 954 (Ind. 1993) ...............................................................................................17
Rice v. Paladin Enterprises, Inc.,

128 F.3d 233 (4th Cir. 1997) .................................................................................14, 15, 18
Robson v. Texas E. Corp.,

833 N.E.2d 461 (Ind. Ct. App. 2005).................................................................................24
Thermal Design Inc. v. American Society of Heating, Refrigerating and Air-

Conditioning Engineers, 755 F.3d 832 (7th Cir. 2014) .......................................................9
Toney v. L'Oreal Usa, Inc.,

406 F.3d 905 (7th Cir. 2005) .............................................................................................32
Uhlaender v. Henricksen,
316 F. Supp. 1277 (D. Minn. 1970) .......................................................................31, 32, 33
United States v. Cerone,

452 F.2d 274, 286 (7th Cir. 1971), cert. denied, 405 U.S. 964 (1972) ..............................39
United States v. Choate,

576 F.2d 165 (9th Cir. 1978) .............................................................................................17
United States v. Edge Broadcasting Co.,

509 U.S. 418 (1993) ...........................................................................................................15
United States v. Erlenbaugh,

452 F.2d 967 (7th Cir. 1972) .......................................................................................25, 26
United States v. Freeman,

761 F.2d 549 (9th Cir. 1985), cert. denied, 106 S.Ct. 1982 (1986) ...................................14
United States v. Kaun,

827 F.2d 1144 (7th Cir. 1987) ...............................................................................14, 15, 18
United States v. Lookretis,

422 F.2d 647 (7th Cir. 1970), cert. denied, 398 U.S. 904 (1970) ......................................26
United States v. Miller,

379 F.2d 483 (7th Cir. 1967) ..............................................................................................26
United States v. Varani,

435 F.2d 758 (6th Cir. 1970) .......................................................................................14, 18
United States v. White,

769 F.2d 511 (8th Cir. 1985) .......................................................................................16, 18
Winterland Concessions Co. v. Sileo,

528 F. Supp. 1201 (N.D. Ill. 1981) .............................................................................35, 36
Yeager v. Cingular Wireless LLC,

673 F. Supp. 2d 1089 (E.D. Cal. 2009)..............................................................................35
Youngblood v. State,
515 N.E.2d 522 (Ind. 1987) ...............................................................................................25
Zacchini v. ScrippsHoward Broadcasting Co.,

433 U.S. 562 (1977) .........................................................................................31, 34, 35, 36
FEDERAL RULES
Federal Rule 12(b)(6) ...................................................................................................................6, 9

STATUTORY PROVISIONS
Cal. Civ. Code 3344 ..................................................................................................34, 35, 37. 38
Ind. Code ("IC") 4-30-14-7 .........................................................................................................17
IC 32-36-1-1........................................................................................................................ passim
IC 32-36-1-2................................................................................................................................11
IC 32-36-1-6..........................................................................................................................17, 33
vi
IC 32-36-1-7................................................................................................................................11
IC 32-36-1-8(a) ...........................................................................................................8, 10, 16, 36
IC 32-36-1-10..............................................................................................................................11
IC 32-36-1-16..............................................................................................................................11
IC 35-45-5-1....................................................................................................................22, 23, 24
IC 35-45-5-2..............................................................................................................13, 23, 24, 26
IC 35-45-5-3........................................................................................................................ passim
IC 35-45-5-4........................................................................................................................ passim
AGENCY MATERIALS
INDIANA GAMING COMMISSION FAQS,

http://www.in.gov/igc/files/Gaming_Control_FAQs.pdf ..................................................27
CONSTITUTIONAL PROVISIONS
U.S. CONST. amend. I .......................................................................................................... passim
PUBLIC LAWS AND ENROLLED ACTS
P.L. 148, 5 (1976), 750, 754 .......................................................................................................22
Senate Enrolled Act No. 339 9,

available at https://iga.in.gov/legislative/2016/bills/senate/339#document-
7f15fe9f ..............................................................................................................................40
LAW JOURNAL ARTICLES
Jonathan L. Faber, Recent Right of Publicity Revelations: Perspective from the

Trenches, 3 Sav. L. Rev. 37 (2016). ..................................................................................10
vii
I. JURISDICTIONAL STATEMENT
The District Court has subject matter jurisdiction pursuant to 28 U.S.C. 1332(d)(2)
because the matter placed in controversy by the Amended Complaint (Complaint)(Dkt. 17) filed
by Plaintiffs Akeem Daniels, Cameron Stingily and Nicholas Stoner (Plaintiffs): (a) exceeds the
sum or value of $5,000,000 exclusive of interest and costs, Dkt. 17, 124, Prayer for Relief (pp.
32-33) (identifying putative class numbering roughly 3,000, and alleging statutory damages of
$1,000 per violation, trebled); (b) is a class action (the Class); and (c) the members of the Class
are citizens of different states from Defendants FanDuel, Inc. and DraftKings, Inc. (collectively
Defendants).
Plaintiff Stoner is a citizen of the State of Indiana. (Dkt. 1, 16-17.) Plaintiff Daniels
resides in Florida. (Dkt. 17, 4.) Plaintiff Stingily resides in Illinois. (Dkt. 17, 4.)1
Defendant FanDuel is a citizen of Delaware, its state of incorporation, and New York,
where it has its principal place of business. (Dkt. 1, 14.) Defendant DraftKings is a citizen of
Delaware, its place of incorporation, and Massachusetts, where it has its principal place of
business. (App. Dkt. 8 at p. 7.)
This Court has jurisdiction pursuant to 28 U.S.C. 1291, which gives this Court
jurisdiction over appeals from all final decisions of the district courts: (a) On September 29, 2017,
the District Court granted Defendants motion to dismiss, which constitutes a final judgment (Dkt.
1
The case was originally filed in state court and citizenship was not an issue. The case was then
removed by Defendants, and the minimal diversity required by CAFA was satisfied by Plaintiff
Stoner being an Indiana citizen, see Dkt. 1 at 4-5. 28 U.S.C. 1332(d)(2). In any event, Plaintiff
Daniels is (and was, at the time of both removal and filing of the Amended Complaint below) a
Florida citizen and Plaintiff Stingily is (and was, at the time of both removal and filing of the
Amended Complaint) an Illinois citizen, and Plaintiffs Amended Complaint alleged that Plaintiffs
maintained and pursued the class action under Federal Rule 23. (Dkt. 17 118-131.)
-1-
75); (b) The Clerk of Court entered Judgment that same day (Dkt. 76); (c) On October 4, 2017,
Plaintiffs timely filed their Notice of Appeal (Dkt. 77).
II. STATEMENT OF THE ISSUES
This appeal raises the following issues:
A. Did the District Court err in holding that Defendants illegal commercial speech
qualified for the newsworthy exception to the Indiana right of publicity statute,
Indiana Code 32-36-1-1, et seq.?
B. Did the District Court err in holding that Defendants illegal commercial speech
qualified for the public interest exception to the Indiana right of publicity statute?
III. STATEMENT OF THE CASE
A. Facts Relevant to Issues Raised on Appeal
Plaintiffs, and the roughly 3,000 putative class members, played college football and
basketball in the 2014 and 2015 seasons, and Defendants used their names and likenesses without
consent. The three named Plaintiffs played football at the University of Indiana and Northern
Illinois University, respectively. (Dkt. 17 3-5.) Plaintiffs had no prior relationship or connection
to Defendants.
Defendants conducted daily fantasy college football and basketball contests in which the
customer pays an entry fee and wins or loses money based on the performance that same day by
the athletes selected by the customeri.e., the customers win or lose money based on the
Plaintiffs activities. (Id. 30.) Defendants use a point system tied to the college athletes
individual performance, such as when an athlete scores a touchdown in football or scores a basket
in basketball. Defendants assign virtual salaries to each athlete, and Defendants customers then
-2-
assemble a roster of real-world athletes consisting of players at various positions, such as
quarterbacks, running backs and wide receivers in football. (Id. 12-13, 31-34.)
In order to prevent customers from simply drafting the very best player at each position,
Defendants construct salary caps by assigning values (the noted salaries) to the student-athletes,
including Plaintiffs2. Customers must stay within a certain salary cap while assembling their
teams, and the customers compete against one another to determine which of their teams exceed
the performance of other customers.
Customers pay entry fees in order to participate in the contests, in some cases as much as
$10,000. (Id. 111.) Those customers whose teams perform best, after accounting for the
aggregated individual performances of the college athletes selected by the customer, win cash
prizes, as high as $1 million or more. (Id.) In other words, Defendants collect the entry fees, retain
some portion for themselves, and then pay out the remaining fees to the winners of their fantasy
football contests.
Defendants contests are completely dependent upon the use of Plaintiffs names and
personas. Without the Plaintiffs (and putative class members), Defendants would simply have no
daily fantasy gambling contests to offer. The gravamen of their contests is such that human beings
are products, offered for a price, and those human beings, in turn, once purchased by the
Defendants users, serve as the de facto gambling implements of Defendants contests. For
example:
During the 2014 season DraftKings profiled Plaintiff Daniels, a running

back at Northern Illinois University, on its website in advance of a game against
Kent State University. (Id. 50.) Customers could choose to draft Plaintiff
2
A salary cap is a limit on the amount of money a team can spend on player salaries. Several
professional sports leagues use salary caps in order to keep costs down and balance the competition
in the league by ensuring that a wealthy team cannot simply buy all the top players. (Dkt. 17 31.)
There is no salary cap in college sports.
-3-
Daniels (i.e., purchase rights to Mr. Daniels himself and his performances), and
could earn points based on Daniels individual athletic performance that week.
Alternatively, customers could draft a different collegiate running back who they
believed would perform better, be a better value, or simply was in better health than
Plaintiff Daniels. (Id. 51.)
DraftKings assigned a salary of $6,100 to Plaintiff Stingily for an upcoming

game against the University of Toledo scheduled for November 11, 2014.
Customers and other speculators would then comment on those values. In this case,
some customers speculated that the value was too high (too pricey) given their
opinions of what the likely outcome would be. (Id. 52-53.) FanDuel treated
Plaintiff Stingily in a similar manner, finding, for example, that Stingily was worth
a salary of $7,200 for the upcoming MAC Championship game scheduled for
December 5, 2014. (Id. 85.) And once again, daily fantasy experts, i.e.,
gamblers, opined as to the wisdom of drafting Stingily at that price, versus
picking someone else. (Id.)
DraftKings assigned Stoner, a wide receiver at Indiana University, a salary

of $3,400 for the third week of the 2014 college football season. (Id. 61.)
Meanwhile, FanDuel assigned Stoner a salary of $4,500 for that same week. (Id.
94.) DraftKings also assigned Stoner a salary of $2,500 for the week preceding
Indianas October 18, 2014 game with Michigan State University. (Id. 62.)
In none of these instances, nor any other, did Plaintiffs consent to the use of their names or
likenesses. (Id. 51, 63, 88, 95.)
Defendants engaged in similar uses of the names and personas of the other student-athletes
who comprise the putative class. Defendants used their names and assigned salary values to each
student-athlete that comprises the putative class. This enabled Defendants customers to draft
individual athletes onto their teams and thereby attempt to win cash prizes by hoping the players
they drafted generated more points than the student-athletes drafted by other customers. (E.g., id.
118-21, 131.)
In addition to using Plaintiffs names, personas, and likenesses as the foundation of their
gambling operations, Defendants use the names of individual college athletes to market their daily
fantasy contests during college athletic events and on their websites. (Id. 98-100.) Defendants
gambling contests also have the effect of creating a cottage industry of speculators who offer
-4-
advice to other speculators hoping to maximize their returns on the daily fantasy gambling sites,
and who discuss Plaintiffs comparative values, i.e., purchase prices. (E.g., id. 90-91.)
The result is that Defendants have used the names and likenesses of college student-
athletes, used that information to create a salary cap and a performance-based point system, set
up internet sites to enable customers to gamble on the results of Plaintiffs activities, and reaped
millions of dollars in the ensuing daily fantasy games. In 2014, it was estimated that DraftKings
netted approximately $2 million per week during the college football season, and paid out over
$20 million per week in cash prizes. (Id. 75.) Meanwhile, in 2014, FanDuel netted over $56
million and awarded $560 million in cash prizes. (Id. 116.) For 2015, FanDuel projected it would
hand out $2 billion in cash prizes. (Id. 117.)
The literally hundreds of millions of dollars that are wagered in the fantasy contests offered
by Defendants and referred to above also include professional sports, as Defendants do not release
revenue or prize figures that delineate between professional and college sports. Those professional
sports contests operate in the same manner, utilize the actual professional athletes names, and use
like statistical information (e.g., touchdowns scored (football) and rebounds, points, assists, steals,
and blocks (basketball)). But there is one huge distinction between Defendants use of professional
athletes and their use of student-athletes Defendants license the same information and rights of
publicity from professional athletes that they take with no payment from college student-athletes.
(Id. 38 n.5; Dkt. 44 at 5.)
Defendants do not have any license from the NCAA to use student-athletes names and
likenesses in the fashion in which the Defendants have used them in their daily fantasy contests.3
3
The NCAAs advertising and promotional guidelines specifically prohibit the use of athletes
[n]ames, pictures or likenesses without specific authorization and appropriate releases. (Dkt. 17
16.) In turn, the NCAAs ByLaws, to which all the putative Class Members are subject, sets forth
-5-
In August 2015, prior to the start of the 2015 football season, the NCAA demanded that both
DraftKings and FanDuel desist from offering daily fantasy sports on college games. (Id. 15.)
Defendants ignored the NCAAs request. (Id. 17.)
B. Procedural History and Rulings Relevant To This Appeal
On May 4, 2016, Plaintiffs filed a Complaint in Marion County Superior Court, Indiana,
against DraftKings and FanDuel. Plaintiffs alleged that Defendants violated their rights of
publicity in contravention of the Indiana Right of Publicity Statute, IC 32-36-1-1, et seq.
Plaintiffs complained that Defendants were violating their rights to publicity by using their names
and likenesses in Defendants fantasy football contests, which were gambling operations.
Plaintiffs sought to represent a class of all NCAA football and basketball players whose names
and likenesses were being used in the promotion or operation of Defendants gambling contests.
(Dkt. 1.)
On May 18, 2016, Defendant FanDuel removed this case to the United States District Court
for the Southern District of Indiana on the basis that the District Court had jurisdiction based on
diversity of citizenship under the Class Action Fairness Act. (Dkt. 1.) On May 26, 2016, Plaintiffs
filed the Amended Class Action Complaint. (Dkt. 17.) The Amended Class Action Complaint
asserted the same substantive claims as the initial Complaint and alleged that Plaintiffs maintained
and pursued the class action under Federal Rule of Civil Procedure 23. (Id. 118-131.)
On June 28, 2016, Defendants DraftKings and FanDuel each filed separate motions to
dismiss the Amended Class Action Complaint for failure to state a claim pursuant to Fed. R. Civ.
P. 12(b)(6). (Dkts. 26-29.) Although Defendants raised many arguments in their respective
that Plaintiffs and the Class Members are required to take steps to stop unauthorized commercial
use of their names by third parties. (Dkt. 17 24.)
-6-
motions, their core defense was that their conduct was protected by the First Amendment and the
corresponding exceptions to the Indiana statute that are premised on First Amendment protections.
On August 26, 2016, Plaintiffs filed their Opposition to Defendants Motions to Dismiss. (Dkt.
44.) Plaintiffs argued, among other things, that the First Amendment and the Indiana statutory
exceptions did not apply to Defendants purely commercial speech, nor to illegal conduct, and that
Defendants daily fantasy contests on college sports constituted illegal gambling under Indiana
law. (Id.)
On September 26, 2016, DraftKings and FanDuel each filed reply briefs in support of their
respective motions. (Dkts. 51-52.) In order to respond to arguments first raised in Defendants
reply briefs, Plaintiffs moved for leave to file a surreply. (Dkt. 60.) Defendant DraftKings opposed
Plaintiffs motion. (Dkt. 70.)
Approximately a year later, on September 29, 2017, the District Court determined that the
newsworthy and public interest exceptions to the Indiana right of publicity statute applied, that the
alleged illegality of Defendants conduct did not preclude Defendants from raising those statutory
defenses, and granted Defendants motions to dismiss. (Dkt. 75; App. 1.) The District Court also
denied Plaintiffs motion to file a surreply as moot. (Id.) No hearing was conducted on either
Defendants motions to dismiss, nor on Plaintiffs motion for leave to file surreply.
On October 4, 2017, Plaintiff filed their Notice of Appeal. (Dkt. 77.)
IV. SUMMARY OF THE ARGUMENT
The District Court was wrong to hold that the Indiana statutes newsworthiness and
public interest exceptions shielded Defendants illegal commercial speech from Plaintiffs right
of publicity claims.
-7-
The Defendants engaged in an illegal gambling operation. The subject of that illegal
gambling operation is the use of Plaintiffs likenesses upon which Defendants customers place
wagers. Without Plaintiffs, Defendants do not have a product to sell. Plaintiffs literally are the
cards of Defendants casino.
The Indiana right of publicity statute provides, in pertinent part: A person may not use an
aspect of a personalitys right of publicity for a commercial purpose during the personalitys
lifetime or for one hundred (100) years after the date of the personalitys death without having
obtained written consent . . . . Ind. Code 32-36-1-8(a) (hereinafter IC). (App. 29.) Personality
is defined to include, among other things, name, likeness, and mannerisms that have commercial
value. Id. Defendants have taken Plaintiffs names, likenesses, and mannerisms and constructed
fantasy football contests based on the use of Plaintiffs information. Defendants then collect user
fees to play their fantasy football contests, retain some portion of those fees, and pay out the
remainder of those fees to the winners of their fantasy football contests, ala any other pari-mutuel
betting scheme.
Defendants argue that their conduct is not covered by the Indiana right of publicity statute
because of various exceptions contained in the statute. But those exceptions are rooted in the First
Amendment. The First Amendment jurisprudence, in turn, is clear that speech used to further
illegal conduct is void ab initio. E.g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498
(1949) (It rarely has been suggested that the constitutional freedom for speech and press extends
its immunity to speech or writing used as an integral part of conduct in violation of a valid criminal
statute. We reject the contention now.). Indiana law on this subject conforms to federal law on
this point. L.E. Services, Inc. v State Lottery Comn of Indiana, 646 N.E.2d 334 (Ind. Ct. App.
-8-
1995); Indiana Bell Telephone Co., Inc. v. Indiana, 402 N.E.2d 962, 965 (Ind. 1980). The result
is Defendants cannot take refuge in the statutory exceptions.
In addition, the District Court was wrong to find that the statutes newsworthy and public
interest exceptions applied. Defendants speech as complained of is purely commercial, with zero
newsworthy or public interest content. Defendants customers are not playing Defendants fantasy
gambling contests to learn about college sports. Rather, Defendants created fantasy sports
gambling contests based upon the Plaintiffs and the putative class members themselves (and their
future athletic performances), assigned values to those interests, and sold those interests to their
customers via entry fees for the fantasy sports contests. The Seventh Circuit noted long ago, in
cases such as Baltimore Orioles v. Major League Baseball Players Ass'n, 805 F.2d 663, 676 n.24
(7th Cir. 1986), that marketing a game based on a players statistics is a violation of the common
law right of publicity. The Court should apply the same rationale to the Indiana right of publicity
statute.
The District Courts decision should be reversed for any or all of these reasons.
V. STANDARD OF REVIEW
The District Court dismissed Plaintiffs case pursuant to Rule 12(b)(6). (Dkt. No. 75; App.
1.) This Court reviews a district court's decision to grant a motion to dismiss de novo. Thermal
Design Inc. v. American Society of Heating, Refrigerating and Air-Conditioning Engineers, 755
F.3d 832, 836 (7th Cir. 2014); Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463 (7th Cir. 2010). In
order to survive a 12(b)(6) motion to dismiss, a complaint must allege facts that state a claim to
relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
resolving a motion to dismiss, the court is to accept all well-pled facts as true and then determine
whether those factual assertions plausibly give rise to an entitlement to relief. Ashcroft v.
-9-
Iqbal, 556 U.S. 662, 679 (2009). Likewise, the Court applies a de novo standard to issues of
statutory interpretation. National Shopmen Pension Fund v. DISA Indus., Inc., 653 F.3d 573, 578
(7th Cir. 2011).
VI. ARGUMENT
A. The District Court wrongly held that the Indiana statutory exceptions apply
to illegal conduct.
1. The scope of the Indiana statute, and the rights conferred, are broad.
The Indiana right of publicity statute provides, in pertinent part: A person may not use an
aspect of a personalitys right of publicity for a commercial purpose during the personalitys
lifetime or for one hundred (100) years after the date of the personalitys death without having
obtained written consent . . . . IC 32-36-1-8(a). (App. 29.)
Indianas Right of Publicity law (the Indiana ROP statute) was enacted in 1994 on the
strength of testimony from, among others, Jeanne White-Ginder, the mother of Ryan White. See
Dan Wetzel, Law Ends Pirating of Celebrities, INDIANAPOLIS STAR (June 25, 1994), available
at https://www.edocr.com/v/axx77zxa/pilotpost/Law-Ends-Pirating-of-Celebrities; Jonathan L.
Faber, Recent Right of Publicity Revelations: Perspective from the Trenches, 3 Sav. L. Rev. 37,
47 (2016). Ryan White became a national figure as a child during the mid-1980s, because he was
one of the first children to die after contracting AIDS from hemophilia complications. Id.
Following Ryans death in 1990, various products were sold for commercial purposes with Ryans
name and likeness, some in poor taste, none of which were approved by his family. Id. Ryans
mother subsequently testified before the Indiana legislature about the need for a right of publicity
statute to prohibit such exploitation. Id.
The statute defines personality as a living or deceased person whose: (1) name; (2) voice;
(3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gesture; or
- 10 -
(9) mannerisms has commercial value, whether or not the person uses or authorizes the use of the
persons rights of publicity for a commercial purpose during the persons lifetime. IC 32-36-1-
6 (emphasis added). The statute specifically provides that the right of publicity is a property
interest (id. 32-36-1-7) (App. 28-29) and is freely transferable and descendible (id. 32-36-1-
16). (App. 31.)
The statute defines commercial purpose:
As used in this chapter, commercial purpose means the use of an aspect of a

personalitys right of publicity as follows:
(1) On or in connection with a product, merchandise, goods, services, or

commercial activities.
(2) For advertising or soliciting purchases of products, merchandise, goods,
services, or for promoting commercial activities.
(3) For the purpose of fundraising.
IC 32-36-1-2. (App. 27-28.)
As a damage remedy, the statute provides for the greater of $1,000 or actual damages,
including profits derived from the unauthorized use. The statute also provides for treble or punitive
damages for knowing, willful or intentional violations. IC 32-36-1-10. (App. 30.)
Finally, the Indiana statute applies to an act or event that occurs within Indiana, regardless
of a personalitys domicile, residence, or citizenship. IC 32-36-1-1(a). (App. 26.)
2. Plaintiffs plead violations of the statute.
The Defendants brazenly and repeatedly used Plaintiffs (and the putative class members)
names for a commercial purpose within the meaning of the statute, during Fall 2014 and beyond.
Plaintiffs allege that Defendants used their rights of publicity (names and likenesses) for a
commercial purpose (Defendants daily fantasy football and basketball contests) and that those
rights have commercial value Defendants derived millions of dollars in revenues from the
contests. (See, e.g., Dkt. 17 35-36,48-56, 60-62, 81-88, 91-94, 135-43.) Plaintiffs who spent
- 11 -
literally hundreds of hours in practice time in high school, and hundreds more in college, attaining
their positions as starters on intercollegiate varsity football teams allege that neither they, nor
the NCAA, provided any consent to the Defendants to do so. (Id. 15, 23, 57, 63, 69-70, 95, 109-
110.) As alleged, Defendants used college athletes images to advertise and promote their college
sports daily fantasy gambling contests. (Id. 99, 103.)
Plaintiffs further allege:
Throughout Fall 2014, both Defendants offered customers the opportunity to allocate a
portion of their gambling entry fees toward ownership of each of the Plaintiffs at specific
Defendant-assigned salary valuations. (Dkt. 17 52-55, 61-62, 85, 94.)
Defendants assigned different salary values (i.e., prices) to the subject athletes on a
week-to-week (or game-to-game) basis, based in part on subjective factors, such as the
consideration that (in the words of FanDuel), freshmen can be inconsistent. (Id.
101.)
In a different week in Fall 2014, a DraftKings user complained that Mr. Stingily had
become too pricey under DraftKings then-prevailing pricing for Mr. Stingily. (Id.
52-53.)
In 2015-16, DraftKings advertised that it will pay out $1 BILLION THIS YEAR!
(capitalization in the original) in prize money. (Id. 64.)
DraftKings deemed college basketball players Denzel Valentine, Michigan St,
Demetrius Jackson, Notre Dame, Fred VanVleet, Wichita St, and DVauntes Smith-
Rivera, Georgetown as Studs in a November 17, 2015 posting to their website, and
Andrew White of Nebraska, Jared Nickens of Maryland, and Pat Birt of Tulsa as
Values i.e., good players to purchase for ones fantasy roster. (Id. 63.)
Commercial speech is speech that proposes a commercial transaction. Jordan v. Jewel
Food Stores, Inc., 743 F.3d 509, 516 (7th Cir. 2014) (citations omitted). Defendants speech at
issue in this case unquestionably and facially proposed commercial transactions. In the words
of FanDuel, every player has a price. (Dkt. 17 78.) DraftKings promoted on its site that
- 12 -
Plaintiff Cameron Stingily could be obtained during one week in Fall 2014 for the cheap price
of $4,800. (Id. 55 (emphasis added).) Plaintiffs further allege Defendants have operated their
respective daily fantasy gambling operations in Indiana since at least 2014 (which is the relevant
time period here). (Id. 19, 41, 42, 79, 118.) Defendants violated the statute on a daily basis
during the 2014 and 2015 college football seasons, and during the 2014-15 and 2015-16 college
basketball seasons.4
3. The District Court erred in failing to consider the illegality of

Defendants college sports gambling contests.
Defendants college sports gambling contests at issue in this case were plainly illegal under
Indiana law, and specifically, as set forth infra, under Indiana Criminal Code Sections 35-45-5-
3(b)(6), 35-45-5-2(c), 35-45-5-3(a)(6), and 35-45-5-4(a)(2). Notwithstanding the illegality of their
contests, Defendants urged below that the First Amendment shielded their unauthorized uses of
Plaintiffs names, images, and personas from liability, and, further, urged that one or more of the
defenses detailed under Section 32-36-1-1(c) of the Indiana ROP statute operated to shield their
conduct from liability. (Dkt. 27 at 5-16, Dkt. 29 at 11-29.) Yet, pursuant to a wide body of
established case law, Defendants statutory defenses vanish just as quickly as their First
Amendment defenses owing to the illegality of their gambling contests, and the integral nature of
their commercial speech invoking the names, images, and personas of Plaintiffs and the other
putative class members in operating these contests. The District Court erred in failing to consider
the illegality of Defendants college sports gambling contests.
4
Defendant DraftKings hinted below that Plaintiffs (and the putative class members), as current
and former NCAA athletes, might not be permitted to retain proceeds from a judgment in this case.
(Dkt. 29 at 5.) This is a baseless proposition. See Dkt. 44 at 10 n.3 (citing August 2015 Order of
the District Court for the Northern District of California, and 2013 NCAA ruling transmitted to
Texas A&M University).
- 13 -
A. Where the speech at issue is integral to criminal conduct, there are no

defenses grounded in the First Amendment to invoke.
The First Amendment does not afford any form of defense or immunity from civil liability
for a defendant whose speech at issue was integral to illegal conduct. Giboney v. Empire Storage
& Ice Co., 336 U. S. 490, 498 (1949) (It rarely has been suggested that the constitutional freedom
for speech and press extends its immunity to speech or writing used as an integral part of conduct
in violation of a valid criminal statute. We reject the contention now.); United States v. Kaun, 827
F.2d 1144, 1152 (7th Cir. 1987) (where speech becomes an integral part of the crime, a First
Amendment defense is foreclosed[.]) (quoting United States v. Freeman, 761 F.2d 549, 552 (9th
Cir. 1985), cert. denied, 106 S.Ct. 1982, (1986)).5
The Fourth Circuit case of Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997),
is instructive. Rice involved a civil action for wrongful death against the publisher of a how-to
book for hit men. Id. at 239 (describing the Hit Man book). An avid reader of the book accepted
a murder-for-hire contract, and, following the books instructions, killed two innocent people. The
5
See also United States v. Varani, 435 F.2d 758, 762 (6th Cir. 1970) ([S]peech is not protected
by the First Amendment when it is the very vehicle of the crime itself.); Central Hudson Gas
Electric Corporation v. Public Service Commn of New York, 447 U.S. 557, 563-64 (1980) ([t]he
government may ban commercial speech related to illegal activity[.]) (citations omitted); Posadas
De Puerto Rico Ass'n v. Tourism Co., 478 U.S. 328, 345-46 (1986) ([T]he greater power [of a
state or commonwealth] to completely ban casino gambling necessarily includes the lesser power
to ban advertising of casino gambling); Near v. Minnesota, 283 U.S. 697, 713-14 (1931) (The
liberty of the press is indeed essential to the nature of a free state; but this consists in laying no
previous restraints upon publications, and not in freedom from censure for criminal matter when
published. Every freeman has an undoubted right to lay what sentiments he pleases before the
public but if he publishes what is improper, mischievous or illegal, he must take the consequence
of his own temerity.) (quoting Blackstone); Ex parte Dupre, 143 U.S. 110, 134 (1892) (We
cannot regard the right to operate a lottery as a fundamental right infringed by the legislation in
question; nor are we able to see that congress can be held, in its enactment [of a statute
criminalizing operation of a lottery utilizing the U.S. Postal Service], to have abridged the freedom
of the press).
- 14 -
district court dismissed plaintiffs wrongful death action on summary judgment, holding that
plaintiffs claims were barred by the First Amendment. Rice, 128 F.3d at 242. The Fourth Circuit
noted that speech even speech by the press that constitutes criminal aiding and abetting does
not enjoy the protection of the First Amendment. Rice, 128 F.3d at 243; see also id. at 244
(collecting authorities). The Court noted that the defendant publisher stipulated in proceedings
before the district court that it engaged in a marketing strategy intended to attract and assist
criminals. Id. at 253. The Fourth Circuit held that this stipulation, along with others, were more
than sufficient to foreclose an absolute First Amendment defense to Plaintiffs suit. Id. Further
noting that Paladin had stipulated that, through publishing and selling the Hit Man book, it had
assisted [the actual hit man]in the perpetration of a crime (specifically the double murder),
the Fourth Circuit (Luttig, J.) held that:
to hold [as urged by Paladin] that the First Amendment forbids [civil] liability
in such circumstances as a matter of law would fly in the face of all precedent
of which we are aware, not only from the courts of appeals but from the
Supreme Court of the United States itself.
Id. at 267. Reversing the district court, the Court of Appeals further held that while it was highly
doubtful as a matter of law that any non-illegitimate (i.e., non-criminal) communicative value
could be ascribed to the defendants speech, this would pose a jury issue. Id. at 249.
In sum, where the speech at issue is integral to criminal conduct, there is no First
Amendment defense to be invoked; none is available to the speaker. Kaun, 827 F.2d at 1152
(speech used to further an illegal activity is not constitutionally protected.). For First
Amendment purposes, the speech is simply void ab initio. United States v. Edge Broadcasting
Co., 509 U.S. 418, 426 (1993) ([T]he activity underlying the relevant advertising gambling
implicates no constitutionally protected right; rather, it falls into a category of 'vice' activity that
could be, and frequently has been, banned altogether.); United States v. White, 769 F.2d 511, 516
- 15 -
(8th Cir. 1985) ([T]he First Amendment does not protect commercial speech which promotes an
illegal activity or transaction).
Such is the posture in which Defendants find themselves. As discussed infra ( A(3)(B)),
Defendants conduct was criminally proscribed under Indiana law and their speech at issue was
integral to this illegal conduct. Accordingly, Defendants were precluded from lodging a First
Amendment defense to Plaintiffs right of publicity claims. The District Court was incorrect to
hold that the Indiana ROP statutory newsworthy and public interest exceptions somehow place
Defendants on an island of immunity in an ocean of liability for their illegal commercial speech,
in an instance where the First Amendment affords none. This is evident from: (1) Indiana case
law; (2) Defendants admissions; and (3) the plain language of the statute.
1. Indiana Case Law

Though the Indiana Supreme Court has not squarely addressed whether speech integral to
illegal conduct may be afforded the protection of either the newsworthiness or public interest
statutory exception to Indiana Code 32-36-1-8(a), Indiana appellate precedent is clear that where
speech is the vehicle of illegal activity, such illegal activity wholly negates and deprives the
proponent of such speech protections. Any party uttering illegal commercial speech promoting
(or operating) a gambling operation in Indiana simply has no right to utter that speech in the first
instance. L.E. Services, Inc. v. State Lottery Com'n, 646 N.E.2d 334, 340 (Ind. Ct. App. 1995);
see also Indiana Bell Telephone Co., Inc. v. Indiana, 402 N.E.2d 962, 965, 273 Ind. 120 (Ind.
1980) (Bell Telephone).
L.E. Services involved a Delaware corporation which was authorized to do business in
Indiana in 1992, and which intended to provide, via retail outlets, an order entry service for state
lottery tickets from various states apart from Indiana, such as California and Florida. Prior to
commencing service, the Indiana Lottery Commission (ILC) sought and secured an injunction
- 16 -
preventing L.E. Services from implementing its business plan. On appeal, L.E. Services argued
that the Indiana state statute requiring a business entity seeking to use the word Lottery in its
corporate name to first seek approval from the ILC violated the First Amendment. Rejecting this
argument, the appellate court held:
We find that the State's interest in regulating gambling activity and

protecting its citizens from unlawful gambling far outweighs any
commercial speech right L.E. Services may assert. Therefore, we affirm
the trial court in its finding that IC 4-30-14-76 does not offend the First
Amendment's guarantee of free speech.
L.E. Services, 646 N.E.2d at 340 (emphasis added).7 L.E. Services echoes the Indiana Supreme
Court itself, which has held that speech thought to promote a criminal scheme . . . is hardly within
the ambit of the First Amendment. Bell Telephone, 402 N.E.2d at 965 (quoting United States v.
Choate, 576 F.2d 165, 181 (9th Cir. 1978)) (holding that superior court had authority to order the
installation and use of a pen register to obtain evidence of crimes). L.E. Services also echoes
Posadas De Puerto Rico Ass'n, Giboney, Ex parte Dupre, and numerous other U.S. Supreme Court
cases, and correctly so: Indiana courts take their cue from the U.S. Supreme Court on issues of
First Amendment law. Bell Telephone, 402 N.E.2d at 965.8
6
IC 4-30-14-7 provides, The corporate name of a corporation may not contain the word lottery
unless the commission approves the name in writing. Id.
7
Accord Helton v. State, 624 N.E.2d 499, 507-08 (Ind. Ct. App. 1993) (Indiana and federal
constitutional protections of free speech and free association do not provide protection for
associations made in furtherance of [crimes] or criminal conspiracy.), trans. denied (citation
omitted).
8
The Indiana Supreme Court has rejected the notion that expression occupies a[s] preferred [a]
position within the Indiana Constitution as it does in the U.S. Constitutions Bill of Rights,
observing that [t]he history and structure of the Indiana Constitution do not demonstrate such a
status for expression. Price v. State, 622 N.E.2d 954, 958 (Ind. 1993). Because speech which
promote[s] a criminal scheme, Bell Telephone, 402 N.E.2d at 965, is not within the ambit of
those protections rooted in the First Amendment that Defendants have invoked, id., there are
similarly no such protections to be afforded them with reference to the Indiana Constitution.
- 17 -
The District Court ignored Plaintiffs citations to L.E. Services (Dkt. 44 at 12, 13, 18), as
well as Giboney, Kaun, White, Varani, and Rice (Dkt. 44 at 2, 11, 12, 13, 18). Instead, the District
Court opined:
Plaintiffs provide no authority or citation to support the contention that illegal

behavior would render Defendants materials somehow outside the scope of the
statutory exceptions. The statute itself does not include any such provision, and
Plaintiffs have cited no other authority or rule of law in support of their
contention.
(App. 19.) The District Court was wrong to ignore L.E. Services and the other cases cited by
Plaintiffs on this issue (Giboney, Kaun, White, Varani, Rice). In so doing, the District Court also
failed to render a conclusion whether Defendants speech was commercial in nature (which it
manifestly was). See App. 22 (expressly declining to conclude whether Defendants speech was
commercial). This, too, was error, inter alia, because the U.S. Supreme Court has expressly held
that a speaker of commercial speech that is just false or misleading (to say nothing of completely
illegal) has no First Amendment rights in uttering that speech. Bolger v. Youngs Drug Corp., 463
U.S. 60, 68 (1983) (Advertisers should not be permitted to immunize false or misleading product
information from government regulation simply by including references to public issues.).
Finding that Defendants illegal commercial speech is permitted and protected by the
newsworthy and public interest exceptions to the Indiana ROP statute (notwithstanding the
Court's denial of Defendants' First Amendment defense, (App. 22)) is contrary to Bolger and this
line of cases.
Indiana case law construing the effect of illegal conduct on other Indiana state civil law
subjects further re-affirms that the District Courts decision was wrong. Specifically, Indiana
courts construe illegal conduct as vitiating any claimed legal right, privilege, or defense that
ostensibly might attach to that conduct. One example of this arises in the employment law context;
- 18 -
employment in Indiana is strongly presumed to be at will. See, e.g., Orr v. Westminster Village
N., Inc., 689 N.E.2d 712, 717-18 (Ind. 1997). Yet there is a court-recognized exception to this rule
where an employer discharges an employee for refusing to commit an illegal act. McClanahan v.
Remington Freight Lines, 517 N.E.2d 390, 393 (Ind. 1988) (permitting a truck driver to pursue a
cause of action against an employer who fired him when he refused to haul a load that exceeded
the amount allowed on Illinois roads, an illegal act for which the employee would have been
personally liable). In McClanahan, the court recognized the exception because not allowing the
truck driver any legal recourse under these circumstances would encourage criminal conduct by
both the employee and the employer. Id. Likewise, in the area of attorney-client privilege, Indiana
courts recognize an exception that pierces the privilege when the client discusses or engages in
illegal conduct with the attorney. Lahr v. State, 731 N.E.2d 479, 482 (Ind. Ct. App. 2000) ([T]he
attorney-client privilege is not absolute, and sometimes the larger societal interest in preventing
illegal conduct outweighs the equally important interest of safeguarding confidential
communications. In such situations, the crime-fraud exception applies.); Green v. State, 257 Ind.
244, 255-56, 274 N.E.2d 267, 273 (Ind. 1971) (citing Clark v. United States, 289 U.S. 1 (1932)).
The U.S. Supreme Court in Clark (cited by the Indiana Supreme Court in Green) aptly summarized
the effect of illegal conduct on the attorney-client privilege as follows: as a privilege [which]
surviv[es] until the relation is abused and vanish[es] when abuse is shown to the satisfaction of the
judge. Clark, 289 U.S. at 16.
2. Defendants Admissions
There is no daylight between the newsworthiness and public interest statutory defenses
and the First Amendment itself. Defendants own arguments confirm this: Defendants in their
briefing below recognized the Indiana statutory exceptions as a codification of the First
- 19 -
Amendment itself. Dkt. 29 at 16; Dkt. 27 at 5. In arguing that DraftKings is eligible for the public
interest statutory exception, DraftKings stated in the opening sentence of such argument:
Plaintiffs[] allegations are painfully at odds with the First

Amendment.
(Dkt. 29 at 16 (emphasis added); see also id. at 15 (citing First Amendment in support of eligibility
for newsworthiness exception); id. at 16 (citing Tenth Circuit citation to the First Amendment in
support of eligibility for public interest exception).) Similarly, FanDuel cited to the First
Amendment multiple times in support of its claim for eligibility for the newsworthiness exception,
Dkt. 27 at 5, 7, 8, urging that the ROP statutes exceptions all involve materials that are also
protected under the First Amendment, id. at 5 (citation omitted), and, regarding the public interest
exception, asserted, the [U.S.] Supreme Court has warned against limiting First Amendment
protections Dkt. 52 at 10-11.
In sum, Defendants themselves plainly acknowledge that the newsworthiness and public
interest statutory exceptions represent a codification of the First Amendment, and that the First
Amendment thus supplies the basis for any potential eligibility that Defendants may have for either
such exception. Though Defendants sought to supply the illusion of analytical distinction by
segmenting the argument sections of their briefs below with separate headers for Statutory
Exceptions and the First Amendment, this is little more than sleight of hand: the arguments are
one and the same.
3. The Plain Language of the Statute

The language of the newsworthy and public interest exceptions of the Indiana ROP statute
echoes the language that courts typically apply in describing the constitutional First Amendment
defenses available to publishers of speech alleged to have infringed upon third parties right of
publicity interests. For example, the District Court for the Southern District of Indiana previously
- 20 -
commented upon the parallel between the statutory Section 32-36-1-1(c)(1)(B) newsworthiness
exception and the ambit of the First Amendment itself, remarking that the newsworthiness
exception along with the others cited in the immediately preceding and succeeding sub-sections
of the statute speak of materials that are also protected under the First Amendment.
Dillinger LLC v. Elec. Arts Inc., 795 F.Supp.2d 829, 836 (S.D. Ind. 2011) (emphasis added).9
Compare I.C. 32-36-1-1(c)(1)(B) (App. 26) (speech that has newsworthy or political value),
I.C. 32-36-1-1(c)(3) (App. 26-27) (speech broadcast[ing] or reportingan event or a topic of
general or public interest), with, e.g., Beverley v. Choices Women's Med. Ctr. Inc., 78 N.Y.2d
745, 579 N.Y.S.2d 637, 587 N.E.2d 275, 279 (1991) (This newsworthiness/public interest
exception evolved out of, and has been applied in, a series of cases in which media defendants
used plaintiffs photos in connection with periodical or newspaper articles or documentary films
concerning newsworthy events or subjects of public interest, including political events, social
trends, scientific news, and stories of consumer interest.) (rejecting defendants First Amendment
defense to plaintiffs statutory right of publicity claim under New York law).
***
No legally cognizable distinctions between the First Amendment itself and the
newsworthiness and public interest exceptions of the Indiana ROP statute exist. The District
Courts decision ignores and renders meaningless long-established Supreme Court, Seventh
Circuit, and Indiana appellate precedent.
B. Defendants speech and conduct were illegal under Indiana law, and integral
to the illegality of their gambling contests.
9
FanDuel itself recognized as much, citing Dillinger for this exact same proposition in its briefing
below. (See Dkt. 27 at 5.)
- 21 -
As set forth below, Defendants college sports gambling contests were illegal, and the
speech complained of in Plaintiffs amended complaint was integral to such contests. Because
these conditions are satisfied, the First Amendment does not shield Defendants from liability under
the Indiana ROP statute. Likewise, because the noted two conditions are satisfied, the Indiana
ROP newsworthy and public interest statutory exceptions (which Defendants themselves concede
are rooted in the First Amendment) do not shield Defendants from liability.
1. Defendants Conduct Was Illegal.
Defendants college sports gambling contests were illegal under Indiana law during all time
periods pertinent to this case, i.e., May 4, 2014 to March 31, 2016. (See Dkt. 17 (Am. Compl.),
41, 46, 71, 107, 118.) One Indiana appellate court has succinctly summarized that gambling
is strictly prohibited by Indiana's anti-gambling laws. Donovan v. Grand Victoria Casino &
Resort, 915 N.E.2d 1001, 1004 (Ind. Ct. App. 2009).10 Gambling is defined under the Indiana
Criminal Code as:
risking money or other property for gain, contingent in whole or in part

upon lot [or] chance
IC 35-45-5-1(d) (emphasis added). Gain means the direct realization of winnings. IC 35-
45-5-1(c). Defendants repeatedly violated at least four separate provisions of Chapter 5, Title 35,
Article 45 of the Indiana Criminal Code (Code).
First, the Code provides that [a]n operator who knowingly or intentionally uses the
Internet to: (6) accept, or offer to accept, for profit, money or other property risked in gambling:
(A) in Indiana; or (B) in a transaction directly involving a person located in Indiana commits the
10
Gambling as a criminal offense was codified (with the above definition of gambling) by the
Indiana Legislature as an Offense[] Against Public Health, Order, and Decency in 1976. See
P.L. 148, 5 (1976), at 750, 754.
- 22 -
crime of professional gambling over the Internet. IC 35-45-5-3(b)(6)(A), (B). Operator is
defined as a person who owns, maintains, or operates an Internet site that is used for interactive
gambling. IC 35-45-5-1(h). A person may include a corporate entity. See L.E. Services, 646
N.E.2d at 340 (concluding, without discussion, that corporate entity L.E. Services, Inc. constituted
a person within the meaning of IC 35-45-5-3).
Second, the Code provides that it is unlawful for [a]n operator who knowingly or
intentionally uses the Internet to engage in unlawful gambling: (1) in Indiana; or (2) with a person
located in Indiana. IC 35-45-5-2(c).
Third, the Code sets forth that A person who knowingly or intentionally: (6) accepts, or
offers to accept, for profit, money, or other property risked in gambling; commits [the crime of]
professional gambling... IC 35-45-5-3(a)(6).
Fourth, the Code provides:
[A] person who: before a race, game, contest, or event on which gambling may
be conducted, knowingly or intentionally transmits or receives gambling
information by any means, or knowingly or intentionally installs or maintains
equipment for the transmission or receipt of gambling information commits
professional gambling.
IC 35-45-5-4(a)(2). Section 35-45-5-1(f) defines gambling information as 1) a
communication with respect to a wager made in the course of professional gambling; or 2)
information intended to be used for professional gambling. IC 35-45-5-1(f).
Defendants repeatedly violated all four of the above provisions. Plaintiffs allege:
That Defendants offered, and transacted business with, daily fantasy college
sporting contest customers in the state of Indiana, via the Internet. (Dkt. 17 8,
28.)
- 23 -
That the Defendants did accept, or offer[] to accept, for profit, money, or other
property risked in gambling. (Dkt. 17 1, 11, 71, 107.)
That Defendants did transmit communication[s] with respect to a wager made
by its customers, and specifically including communications related to the salary
values that the Defendants assigned to Plaintiffs and individual college athletes.
(Dkt. 17 28, 30, 31, 33, 46, 48, 49, 51, 52, 54, 55, 56, 60, 61, 80, 81, 84, 85, 87,
93, 94, 95.)
Based on Plaintiffs well-pleaded allegations, Defendants violated IC 35-45-5-3(b)(6), IC 35-
45-5-2(c), IC 35-45-5-3(a)(6), and IC 35-45-5-4(a)(2).
a) Defendants contests involved an element of chance within the

meaning of IC 35-45-5-1(d).
The risking by Defendants customers of money or other property for gain, Dkt. 17
1, 21, 29, constituted gambling under IC 35-45-5-1(d) because Defendants college sports
daily fantasy contests were contingent inpart uponchance (IC 35-45-5-1(d)). DraftKings
has conceded in New York state court proceedings that based on the evidencethere is an
element of chance in [daily fantasy sports contests] offered by DraftKings. (DraftKings Mem.
In Oppn to Mot. for Prelim. Injunction, New York v. DraftKings, Inc., Index No. 453054/2015
(NY Cty.) (Nov. 24, 2015), available at http://www.legalsportsreport.com/wp-
content/uploads/2015/11/DK-Oppn-to-PI.pdf (cited by Plaintiffs below, see Dkt. 44 at 15)).
DraftKings is precluded under principles of judicial estoppel from taking a contrary position in the
instant proceeding. Robson v. Texas E. Corp., 833 N.E.2d 461, 466 (Ind. Ct. App. 2005), trans.
denied (judicial estoppel is a judicially created doctrine that seeks to prevent a litigant from
asserting a position that is inconsistent with one asserted in the same or a previous proceeding).
- 24 -
The clear concession by DraftKings that there was some element of chance to its daily
fantasy contests is conclusive on the issue of whether paid participation in DraftKings college
football and basketball daily fantasy contests constituted gambling under IC 35-45-5-1(d): the
statute defines gambling as risking moneycontingent in whole or in part uponchance
IC 35-45-5-1(d) (emphasis added). DraftKings CEO Jason Robins offered separate admissions
in 2012, describing DraftKings as operating in the gambling space, referring to customer
deposits as wagers, stating that daily fantasy contests constitute a mash[-] up between poker
and fantasy sports, and describing DraftKings business model as identical to a casino,
specifically poker. (Dkt. 17 46 (emphasis added).) Poker is a recognized form of illegal
gambling under Indiana law. Youngblood v. State, 515 N.E.2d 522, 524, 526 (Ind. 1987). The
New York Attorney General has alleged that DraftKings uses weekly fantasy college football
betting, weekly fantasy college basketball betting, Fantasy College Football Betting, and
Fantasy College Basketball Betting in embedded search terms in its website. See Dkt. 17 47;
New York v. DraftKings, Inc., Index No. 453054/2015, Pls. Mem. Of Law (N.Y. Sup. Ct. (N.Y.
Cty.) (Nov. 17, 2015), available at https://ag.ny.gov/pdfs/DK_MOL.pdf, at 8 (emphasis added)
(cited at Dkt. 44 at 16).
As to FanDuel, in a spreadsheet provided by a FanDuel representative in or around 2012
to a FanDuel investor, FanDuel compared its customer entry fees across all daily fantasy categories
to those of an international gambling operator known as Bwin.Party Sports Betting, Dkt. 17
107 (emphasis added), and referred to customer entry fees in the betting parlance of stakes.
(Id.)
b) Extensive precedent confirms the illegality of Defendants speech

and conduct
- 25 -
It is clear that Defendants speech, and conduct, gave rise to violations of the Indiana
Criminal Code. Defendants use of the parlance of sports betting is revealing. Across a broad
spectrum of cases, the Seventh Circuit has held that sports betting operators violate Indiana
gambling law. See United States v. Erlenbaugh, 452 F.2d 967, 970, 971 (7th Cir. 1972) ([t]here
is no denial by any of the Defendants that they were all engaged in a business enterprise involving
bookmaking or gambling unlawful under Indiana law where Defendants conducted a sports
betting operation that catered to bettors in Hammond, Indiana); United States v. Lookretis, 422
F.2d 647 (7th Cir. 1970), cert. denied, 398 U.S. 904 (1970) (affirming conviction under Indiana
gambling statute where defendant conducted baseball pool based on statistics of games played
that day); United States v. Miller, 379 F.2d 483, 484 (7th Cir. 1967) (affirming conviction where
Miller operated a baseball gambling pool there. The pool was concededly illegal under Indiana
law). Similarly, Defendants DraftKings and FanDuel plainly operated their college sports daily
fantasy contests in violation of several provisions of Indiana gambling law, specifically, IC 35-
45-5-3(b)(6), IC 35-45-5-2(c), IC 35-45-5-3(a)(6), and IC 35-45-5-4(a)(2). As stated aptly
by the international sports network ESPN, [I]ts time to stop pretending daily fantasy is not
gambling. (Dkt. 17, 71.)11
11
Accord State v. Biela, Case No. 46A03-1608-CR-1742 (Ind. Ct. App.) (Sept. 29, 2016), Br. of
App., at 6, 7, 13, 17, available at
https://public.courts.in.gov/mycase/#/vw/CaseSummary/eyJ2Ijp7IkNhc2VUb2tlbiI6Ik5qSXpNR
EV3TnpFek1URXhPalk1TXpJeU5UUXlNMlk9In19 (discussing April 5, 2016 LaPorte County,
Indiana criminal charging information for commission of the offense of promoting professional
gambling under IC 35-45-5-4(a)(2) arising from dissemination by four defendants of parlay
cards for purpose of wager[ing] on football games using point spread information and
for bets[on] such matters as what team[s] would score over/under bets for the total score
and which team would score the longest touchdown); id. at 6 n.1 (discussing May 2016 guilty
plea of fifth defendant for two counts of Level 6 felony promoting professional gambling arising
from same nucleus of conduct); see also State v. Mazur, 46D011602F5161 (LaPorte Cty., Ind.),
State v. Biela, 46D011602F5155 (LaPorte Cty., Ind.) (on remand from Indiana Court of Appeals,
trial dates scheduled for two defendants on Section 35-45-5-4(a)(2) charges set for December 11,
- 26 -
c) The Indiana Gaming Commission confirmed Defendants conduct

was illegal.
The Indiana Gaming Commission (Gaming Commission) provided standing guidance to
the general public concerning paid participation in fantasy sports encompassing the pertinent time
period in this case. (Dkt. 44 at 17 (citing http://www.in.gov/igc/files/Gaming_Control_FAQs.pdf
at 2 (No. 16).) Specifically, dating to at least April 2014, the Gaming Commission advised that:
16. Are fantasy sports leagues legal? How about all sports betting,
like Final Four brackets?
[A:] Fantasy sports, as long as the definition of gambling is not met,

are legal. If you pay to belong to a league or to participate, its illegal.
Id. (emphasis added). The Gaming Commission maintained the public guidance (inter alia)
through at least September 2015. (Dkt. 44 at 17 n.8.)
2. Defendants speech was integral to the illegality of their gambling contests.
Plaintiffs alleged that [i]n daily fantasy college football and basketball, each college
player whose name appears on Defendants websites as someone who is eligible to be owned by
a DraftKings customer (i.e., each Class Plaintiff) is equally integral to the Defendants
implementation of their unlawful scheme. (Dkt. 17, 26.) Plaintiffs further alleged that in the
words of Defendant FanDuel, their college sports contests operated as follows:
"Choose Your League for the Day";

"Pick The Players You Want[;] We use a salary cap formatso every player has
a price;
"Know if You Win THAT Night"
2017 and February 13, 2018, respectively), docket sheets available at

https://public.courts.in.gov/mycase/#/vw/Search.
- 27 -
(Dkt. 17 78 (emphasis in the original).) Plaintiffs have alleged that the Defendants assigned
various salaries (i.e., purchase prices) to each of Plaintiffs on a weekly basis in Fall 2014, and that
Defendants engaged in this same conduct with respect to other athletes during the Fall 2014
through Spring 2016 time period. (Dkt. 17 29, 52-55, 61-62, 85, 94.) All such speech was
wholly central to, and an inseparable component of, Defendants illegal college sports gambling
contests. Those contests would not have existed, and could never have occurred, without
Defendants uses of Plaintiffs names and likenesses.
Indeed, much of the speech at issue in this case constituted the actus reus (in and of itself)
of a criminal offense: the transmi[ssion] of gambling information, i.e., the offense of
commission of professional gambling under Indiana Criminal Code Section 35-45-5-4(a)(2).
I.C. 35-45-5-4(a)(2); see Dkt. 17, 49, 51, 52, 54, 55, 56, 60, 61, 80, 81, 84, 85, 93, 94, 95. It
is incontrovertible that Defendants speech at issue was integral to the illegality of their college
sports gambling contests.
B. The District Court incorrectly held that the newsworthy exception of the
Indiana statute applies to Defendants speech and conduct.
The Indiana right of publicity statute provides, at Section 32-36-1-1(c)(1)(B): This chapter
does not apply to the following:(B) Material that has political or newsworthy value. (App. 26.)
Even putting aside the illegality of Defendants speech and conduct, the notion that the
newsworthy exception of the ROP statute confers immunity to the Defendants is well off the mark.
Under Indiana law, a courts task in construing the statute is to give effect to the
legislatures intent. Ashlin Transp. Services, Inc. v. Indiana Unemployment Ins. Bd., 637 N.E.2d
162, 166 (Ind. Ct. App. 1994). The reviewing court looks to the plain, ordinary meaning of the
words and phrases in the statute to discern legislative intent and presumes that the legislature
- 28 -
intended its language to be applied in a logical manner consistent with the statute's underlying
policies and goals. Id.
Here, the catalyst for the statutes passage was when the Indiana legislature became
aware that unscrupulous profiteers were selling baseball-type cards featuring the name and
image of pediatric AIDS patient (by then deceased) Ryan White. See Dan Wetzel, Law Ends
Pirating of Celebrities, INDIANAPOLIS STAR (June 25, 1994), available at
https://www.edocr.com/v/axx77zxa/pilotpost/Law-Ends-Pirating-of-Celebrities (quoting the
author of the statute, State Senator Luke Kealey, as stating, It was clear that the question of the
right of publicity had not been clearly defined. For me, though, the catalyst was when we found
out Ryan Whites mother was having problems with things that I felt were not very proper.).
There is no question that Ryan Whites campaign against the AIDS virus (as well as his tragic and
untimely passing) were newsworthy matters as well as of public interest, but that did not put the
commercial exploitation of Ryans name outside the scope of the statute in fact, quite the
opposite.
Exempting Defendants speech and conduct in this case under either the statutory
newsworthiness exception or the public interest exception would not effectuate the statutes
language in a logical manner consistent with its underlying policies and goals. The heart of this
case consists of speech by Defendants that had zero newsworthy or public interest content
whatsoever, and instead constituted pure commercial speech. What the Defendants sold, and what
their customers purchased, were the Plaintiffs and the putative class members themselves, along
with a purported stake in the future athletic performances of Plaintiffs and their fellow athletes.
And in assigning so-called salaries to each of the Plaintiffs and putative class members (who
were, incidentally, prohibited under NCAA regulations from drawing an actual salary for
- 29 -
competing intercollegiately), the Defendants were doing no more than assigning purchase prices
to each of Mr. Daniels, Mr. Stingily, and Mr. Stoner.This point was argued below, Dkt. 44 at 22
n.14, Dkt. 60-1 at 11, and is illustrated by the following:
What each Defendant thus did literally via their daily fantasy college sports offerings was to
put a dollars-and-cents price tag on the purchase of human beings. In the above example, a
DraftKings user paid $50 to enter a college football daily fantasy contest with a salary cap of
$50,000. (Dkt. 17 12.) Because DraftKings assigned Mr. Stingily a salary (i.e., purchase price)
of $4,800 in virtual Defendant currency, the out-of-pocket price to the DraftKings customer to
purchase Mr. Stingily that week was $4.80.
- 30 -
The proposition of putting price tags on human beings without consent (in this case, $4.80
to buy Mr. Stingily) is itself unconscionable and palpably illegal; the Defendants routinely engaged
in this conduct on a week-to-week basis. DraftKings went so far as to opine that Mr. Stingilys
price for the week of December 1, 2014 was a cheap one. (Dkt. 17 55 (advertising that
Plaintiff Stingily could be obtained by DraftKings customers for a cheap price)). This again,
was purely commercial speech, wholly devoid of any newsworthy or public interest content
whatsoever, and therefore, under the plain language of the statute, this speech by Defendants
violated Section 8(a) of the statute and the Defendants were not eligible for the application of the
urged exceptions.
Even crediting Defendants with the notion that the newsworthiness exception might apply,
applying it here would fly directly in the face of established Seventh Circuit precedent. The
Seventh Circuit has expressly noted that the market[ing] [of] a game based upon [a] players
career statistics is a violation of the athletes right of publicity:
A player's right of publicity in his name or likeness would not be

preempted [by the U.S. Copyright Act] if a company, without the
consent of the player, used the player's name to advertise its
product...or marketed a game based upon the player's career
statistics, cf. Uhlaender v. Henricksen, 316 F. Supp. 1277, 1282 (D.
Minn. 1970).
Baltimore Orioles v. Major League Baseball Players Ass'n, 805 F.2d 663, 676 n.24 (7th Cir. 1986)
(emphasis added), cert. den. 480 U.S. 941 (1987). In Baltimore Orioles, the court considered
whether major league baseball clubs own exclusive rights to the televised performances of major
league baseball players during games. The players claimed that the clubs had misappropriated
their property rights in their names, pictures, and performances. The Seventh Circuit, affirming in
part and vacating in part summary judgment in favor of major league teams, ordered the district
court to determine the appropriate substantive law to apply based on Illinois choice of law
- 31 -
principles. In doing so, the court noted: [T]he right of publicity protects against the unauthorized
exploitation of names, likenesses, personalities, and performances that have acquired value for the
very reason that they are known to the public. Id. at 677 n.26 (citing Zacchini, 433 U.S. at 575-
79, Uhlaender v. Henricksen, 316 F. Supp. 1277, 1279-82 (D. Minn. 1970), and other cases).
Baltimore Orioles was expressly re-affirmed for this proposition in Toney v. L'Oreal Usa, Inc.,
406 F.3d 905, 911 (7th Cir. 2005).
The Baltimore Orioles courts multiple citations to the Uhlaender case (noted immediately
above, 805 F.2d at 676 n.24, see also id. at 677 n.26, id. at 680) are instructive. Uhlaender involved
a fantasy baseball board game with several attributes similar to the Defendants daily fantasy
contests:
Defendants manufacture and sell games called Negamcos Major League

Baseball and Big League Manager Baseball. These employ the names and
professional statistical information such as batting, fielding, earned run and
other averages of some 500 to 700 major league players, identified by team,
uniform number, playing position and otherwise. Defendantsadvertising
contained such statements as:
SCIENTIFICALLY COMPUTED[.] Players are rated in every phase of

baseball play. Each pitcher is different and each batter is different. You
manage 520 big time players. Your strategy affects the outcome of every
game220 pitchers and 300 fielders are includedAs coach youselect the
line-ups, and make many, many other decisions! With BLM, good managing
is needed!
Uhlaender, 316 F. Supp. at 1278.
The Uhlaender class action suit filed by one of the players whose names were used by
the defendant in the marketing and operation of their games sought injunctive relief on the
- 32 -
ground that the manufacturers use of the players names without their authorization violated their
rights of publicity.12 The district court summarized:
It wouldseem, from a review of the authorities, that although the

publication of biographical data of a well-known figure does not per se
constitute an invasion of privacy, the use of that same data for the purpose of
capitalizing upon the name by using it in connection with a commercial
project other than the dissemination of news or articles or biographies
does
Id. at 1282 (emphasis added) (quoting Palmer v. Schonhorn Enters., Inc., 232 A.2d 458, 460 (N.J.
Super. Ct. 1967)). The court held: Defendants have violated plaintiffs' rights by the unauthorized
appropriation of their names and statistics for commercial use, and granted the requested
injunctive relief. Id. at 1283.
Defendants ignore that their core speech entailed assigning dollars-and-cents price tags to
human beings (the Plaintiffs), and instead focus on the fact that they advertised their daily fantasy
contests, in some instances, in part, with reference to athletic statistics. But the statistics were not
being bought (by Defendant customers) nor sold (by the Defendants themselves). Instead, it is the
college athletes themselves who were being sold, along with purported rights in those athletes
future athletic performances. Additionally, the Defendants also marketed the sale of the individual
athletes in part through commentary on their body types and physical musculature, which is a
specifically protected aspect of a persons personality under the Indiana ROP statute. (Dkt. 17
56; IC 32-36-1-6(7).) (App. 28.) Even if the Defendants had been using solely athletic statistics
to market the sale of some product other than human beings (and gambling), however, it would be
inappropriate to accord protection to Defendants under the statute for their mentions of athletic
statistics in this case. Baltimore Orioles illustrates this, as does Uhlaender (cited by Baltimore
12
The case was filed in Minnesota, although the district court did not specify in its opinion which
states law it was applying.
- 33 -
Orioles), as does the Ninth Circuit case of Abdul-Jabbar v. General Motors Corp., 75 F.3d 1391
(9th Cir. 1996).
In Abdul-Jabbar, an automobile manufacturer used the name, and college statistics, of a
former college (then-professional) athlete, Kareem Abdul-Jabbar, to advertise its automobile in a
TV commercial. Abdul-Jabbar filed suit, alleging, inter alia, violation of his right of publicity
under California statutory and common law. The Ninth Circuit described the GMC ad at issue:
[In the] television commercial A disembodied voice asks, "How 'bout some
trivia?" This question is followed by the appearance of a screen bearing the
printed words, "You're Talking to the Champ." The voice then asks, "Who holds
the record for being voted the most outstanding player of th[e NCAA]
tournament?" In the screen appear the printed words, "Lew Alcindor, UCLA,
'67, '68, '69." Next, the voice asks, "Has any car made the 'Consumer Digest's
Best Buy' list more than once? [and responds:] The Oldsmobile Eighty-Eight
has." A seven-second film clip of the automobile, with its price, followsthe
voice says, "In fact, it's made that list three years in a row. And now you can
get [it] for just $18,995." At the end of the clip, a message appears in print on
the screen: "A Definite First Round Pick," accompanied by the voice saying,
"it's your money." A final printed message appears: "Demand Better, 88 by
Oldsmobile."
Id. at 1393-94. The defendant GMC contended that its discussion of Abdul-Jabbar and his college
statistics amounted to discussion of newsworthy itemsprivileged under right of publicity
laws. Id. at 1400. Rejecting this argument, the Ninth Circuit concluded:
While Lew Alcindor's basketball record may be said to be newsworthy, its

use is not automatically privileged. GMC used the information in the
context of an automobile advertisement, not in a news or sports account.
Hence GMC is not protected by section 3344(d) [of the California right of
publicity statute]).
Id. at 1401 (emphasis added).13
13
The California right of publicity statute contains a news exception that bears many similarities
to the Indiana statutes newsworthiness exception: For purposes of this section, a use of a name,
voice, signature, photograph, or likeness in connection with any news, public affairs, or sports
broadcast or account, or any political campaign, shall not constitute a use for which consent is
required under subdivision (a). Cal. Civ. Code 3344(d).
- 34 -
Abdul-Jabbar, Baltimore Orioles (and Jordan) all trace to Zacchini v. ScrippsHoward
Broadcasting Co., 433 U.S. 562 (1977), which instructs that athletes and entertainers rights of
publicity are not to be cast aside lightly in the face of defenses rooted in asserted First Amendment
rights. The petitioner in Zacchini, a performer of a human cannonball stunt, had a right of
publicity that gave him personal control over commercial display and exploitation of his
personality and the exercise of his talents, one that did not yield to the claims of First Amendment
protection invoked by the defendant media outlet that broadcast his performance. Id. at 569.
Numerous courts continue to faithfully (and correctly) follow Zacchinis standard. E.g.,
Winterland Concessions Co. v. Sileo, 528 F. Supp. 1201, 1213 (N.D. Ill. 1981); Fraley v.
Facebook, 830 F. Supp. 2d 785, 805 (N.D. Cal. 2011) ([E]ven if the underlying actions taken by
Plaintiffs are newsworthy, Plaintiffs assert that Facebook's commercial use of those actions. . .
removes them from the scope of [California Civil Code] 3344(d)'s newsworthy privilege. The
Court agrees. Because Facebook's publication of Plaintiffs Likes is alleged to be for commercial
advertising purposes and not part of any news, public affairs, or sports broadcast or account, or
any political campaign, the Court does not find it appropriate to dismiss the claim under the
newsworthiness exception provided in 3344(d).); Yeager v. Cingular Wireless LLC, 673 F.
Supp. 2d 1089 (E.D. Cal. 2009) (rejecting defendants First Amendment defense against plaintiffs
California statutory right of publicity and other claims where defendant used plaintiffs name in a
hurricane preparedness publication, finding that the [p]ublication's sole purpose was to promote
defendant's services.).14
14
Defendants, and, in turn, the District Court, relied on out-of-circuit precedent, C.B.C.
Distribution and Marketing, Inc. v. Major League Baseball Advanced Media, L.P., 505 F.3d 818
(8th Cir. 2007), to reach a contrary holding. But apart from arising outside the Seventh Circuit,
and applying Missouri law, C.B.C. involved professional athletes, and as the Eighth Circuit noted
in its holding, professional athletes are rewarded, and handsomely, too, for their participation in
- 35 -
C. The District Court incorrectly held that the public interest exception of the
Indiana statute applies to Defendants speech and conduct.
The public interest exception to the Indiana ROP statute provides, This chapter does not
apply to the following: (3) The use of [protected aspects of a persons] personality[]in
connection with the broadcast or reporting of an event or a topic of general or public interest. IC
32-36-1-1(c)(3). (App. 26-27.) Defendants cannot dress up their gambling operations as
newspapers (or magazines) merely because they rely, in part, on NCAA statistical data to lure in
new gambling customers.
The District Courts decision renders null the Section 32-36-1-8(a) liability provision of
the statute by permitting ROP Sections 32-36-1-1(c)(1)(B) and 32-36-1-1(c)(3) to swallow that
former provision whole. Yet the Indiana right of publicity statutes framers did not intend to
provide such blanket protection to manifestly commercial (as well as illegal) speech which (in this
instance) had the effect of exploiting the names and personas of young college athletes without
consent. See Law Ends Pirating of Celebrities, cited supra p. 10.
A more logical, and more coherent, approach is to construe the language of IC Section 32-
36-1-1(c)(3) as applying statutory protection to news media organizations, and not just any
conceivable commercial enterprise that happens to sell one or more items or services that should
attract the interest of one or more members of the buying public. Davis v. Electronic Arts, Inc.,
775 F.3d 1172, 1178 (9th Cir. 2015) (no cause of action will lie for the publication of matters in
the public interest, which rests on the right of the public to know and the freedom of the press to
games and can earn additional large sums from endorsements and sponsorship arrangements. 505
F.3d at 824. Numerous other key differences pertain to that decision, including that the C.B.C.
court did not consider whether the conduct of the website operator in that case violated Missouri
criminal law. Apart from these differences, the decision is wrongly decided on its face, and
conflicts with better-reasoned cases such as Keller, Abdul-Jabbar, and Baltimore Orioles (to say
nothing of Zacchini).
- 36 -
tell it.) (quoting Hilton v. Hallmark Cards, 599 F.3d 894, 912 (9th Cir. 2010) (emphasis added);
Zacchini, 433 U.S. at 574-75 (recognizing that, even as to media reports, a line is to be drawn
between protected and unprotected media reports: Wherever the line in particular situations
is to be drawn between media reports that are protected and those that are not, we are quite sure
that the First and Fourteenth Amendments do not immunize the media when they broadcast a
performer's entire act without his consent."); Winterland Concessions Co., 528 F. Supp. at 1213
(holding entertainers rights of publicity were violated where defendant printed entertainers
names and likenesses on t-shirts without authorization, since [the distributors products] are not
newspapers but shirts, and rejecting defendants asserted First Amendment defense) (emphasis
added).
In re NCAA Student-Athlete Name & Likeness Licensing Litig. (Keller), 724 F.3d 1268
(9th Cir. 2013), supplies additional persuasive authority. In Keller, lead plaintiff Samuel Keller
was a quarterback for Arizona State University whose name appeared in an Electronic Arts video
game in which college players likenesses and body types were replicated. 724 F.3d at 1271.
Though the game omitted the players' names on their jerseys and assigned each player a home
town that was different from the actual player's home town, game users were permitted to upload
the players real names into the video game using third party software. Id. The Keller plaintiffs
filed suit in the Northern District of California and alleged that EA violated their rights of publicity
under California Civil Code 3344 and California common law. Id. at 1272. EA sought dismissal,
arguing that its use of the college players likenesses in its video games was immunized based on
California common law defenses rooted in the First Amendment, as well as the California statutory
news [and] public affairs defense, Cal. Civ. Code 3344(d). Keller, 724 F.3d at 1282. The
court summarized EAs argument:
- 37 -
EA argues that these defenses give it the right to incorporate athletes'

names, statistics, and other biographical information into its expressive
works, as the defenses were designed to create extra breathing space
for the use of a person's name in connection with matters of public
interest.
Id.
The Ninth Circuit rejected this argument, holding:
EA's video game is a means by which users can play their own virtual
football games, not a means for obtaining information about real-world
football games.
Keller, 724 F.3d at 1283 (emphasis added). So too here. These Defendants do not even charge
customers on the basis of paying to access DraftKings or FanDuel information; instead, the
Defendants customers pay entry fees to gamble, (Dkt. 17 12), and Defendants speech comprises
both the marketing for gambling and the gambling operation itself. Defendants fantasy contests
are means for its customers to gamble, not to obtain information about college athletics. See also
Davis, 775 F.3d at 1179, cert denied, 136 S. Ct. 1448 (2016) (holding that although video game
depicting athletes contains some factual data, it is a game, not a reference source[,] [n]or a
publication of facts about professional football.).
The District Court broadly construed the phrase in connection with in IC Section 32-36-
1-1(c)(3) so as to subsume virtually any conceivable defendant, and virtually any conceivable type
of commercial speech. (Dkt. 75 at 13, 14.) But this was error. Abdul-Jabbar, cited supra,
illustrates as much. In that case, the Ninth Circuit was presented with a California statutory clause
that provided: For purposes of this section, a use of a namein connection with any news, public
affairs, or sports broadcast or accountshall not constitute a use for which consent is required
under subdivision (a). Abdul-Jabbar, 75 F.3d at 1400-01; Cal. Civ. Code 3344(d). Yet, the
Ninth Circuit quite sensibly concluded that the defendant used the [plaintiffs] information in the
- 38 -
context of an automobile advertisement, not in a news or sports account, id. at 1401, and rejected
the proffered statutory defense, notwithstanding the statutes use of the phrase, in connection
with
Context matters. Even construing the public interest exception provision of the statute as
applying to non-media defendants, illegal speech that happens to pertain to the subject matter of
sports is not protected speech in or of the public interest:
Angelini's [F]irst [A]mendment argument is, in essence, that, since newspapers

and other media frequently report predictions as to the outcomes of various
athletic eventsindeed, some of which are similar to or based upon Angelini's
computation of odds and point spreads and such communication is protected
by the [F]irst [A]mendment, Angelini's telephonic communication of such
information is similarly protected. We rejected such an assertion [previously],
and we again reject it. Angelini's [F]irst Amendment claim erroneously proceeds
on the implicit assumption that the known use and purpose of communication is
not relevant to the determination of whether the communication may be
prohibited consistent with the [F]irst [A]mendment. It is clear that speech or
conduct ordinarily protected by the Constitution may lose that protection
because of the intent of the speaker or actor or the context within which it occurs.
The communication of opinions as to the outcome of future athletic contests may
not threaten valid community interests in other contexts, but such
communication clearly threatens legitimate community interests when it occurs
as a part of an illegal gambling operation
United States v. Cerone, 452 F.2d 274, 286 (7th Cir. 1971) (citations omitted), cert. denied, 405
U.S. 964 (1972). See also Bell Telephone, 402 N.E.2d at 965.
The International Business Times, in discussing daily fantasy sports and the potential
impact on college athletics, noted the widespread concern, notably among college administrators,
that legalized sports gambling would open up [college] athletics to corruption in the form of fixed
outcomes and point-shaving. (Dkt. 17 38.) Murder, drug smuggling, and bank robbery also
affect the general public and to that extent hold interest for the public (and are newsworthy).
But engaging in those behaviors, and then commenting on them (or worse, inviting those and other,
related illegal behaviors), and then obtaining statutory protection for such speech, is clearly not
- 39 -
what the Indiana ROP statutes framers had in mind. Expressed differently, the District Court
failed to supply a cogent rationale for how (or why) a civil defendant which was prohibited in the
first instance under Indiana criminal law from uttering a particular statement may find a safe harbor
immunizing the utterance (once uttered) under either of ROP Sections 32-36-1-1(c)(1)(B) or 32-
36-1-1(c)(3).
D. The District Court erred in denying Plaintiffs motion for leave to file surreply.
The District Court below denied a Motion for Leave to File SurReply (Dkt. 60) filed by
Plaintiffs on October 3, 2016. This was error.
On March 24, 2016, Indiana partially legalized daily fantasy contests in Indiana, effective
July 1, 2016. (See Dkt. 17 70; Senate Enrolled Act No. 339 9, available at
https://iga.in.gov/legislative/2016/bills/senate/339#document-7f15fe9f.) However, the partial
legalization did not encompass college sports, as to which daily fantasy contests remained illegal.
See Senate Enrolled Act No. 339 9 (defining now-legalized paid fantasy sports game[s] as
any fantasy or simulation sports game or contest that meets the following conditions:(4) The
statistical results of the performance of individuals [whose performances are the underlying subject
of the contests] are not based on college or high school sports.) (emphasis added). Defendants
college sports gambling contests at issue in this litigation spanned from May 4, 2014 until March
31, 2016. (Dkt. 17, 41, 118.) In their Reply briefing below, Defendants argued for the first time
that their college sports gambling contests were legal under Indiana law, ostensibly under a theory
that Indiana Senate Bill 339, which was passed into law in March 2016 and legalizes certain paid
daily fantasy sports, represented a clarification of prior Indiana law. (Dkt. 51 at 15-17; Dkt. 52
at 2-5.) Such new, belated argument was incorrect, as set forth in Plaintiffs SurReply (Dkt. 60-
1). Because Defendants only first raised their new argument in Reply briefing, Plaintiffs sought,
- 40 -
and should have been permitted, to submit a Surreply demonstrating the incorrectness of the
argument. See Meraz-Camacho v. United States, 417 F. Appx 558, 559 (7th Cir. 2011)
(unpublished) (a surreply should be allowed for valid reasons, such as when the movant raises
new arguments in a reply brief); Gold v. Wolpert, 876 F.2d 1327, 1331 n. 6 (7th Cir. 1989) (new
arguments may not be raised for the first time in a reply brief).
Defendants new clarification argument ignored that Indiana Senate Bill 339 evidences
the Indiana Legislatures view, and is consistent with specific guidance issued by the Indiana
Gaming Commission, that Defendants daily fantasy contests on college sports constitute illegal
contests of chance.
The District Court denied Plaintiffs Motion for Leave to File SurReply as moot. (Dkt.
75 at 19 n.5.) However, the SurReply as proposed was not moot, since, as demonstrated above,
the illegality of Defendants conduct was not immaterial to resolution of Defendants Motions to
Dismiss, and instead was dispositive of those Motions.
CONCLUSION
This right of publicity case does not present a close question. Defendants repeatedly
engaged in brazen illegal commercial speech over a period of years in every such instance
invoking Plaintiffs and the putative class members names and personas without consent yet
the District Court below declined to determine whether the speech at issue was either commercial
in nature, or illegal in nature. This was clear error. In casting aside and extinguishing Plaintiffs
rights of publicity under the Indiana statute without making these threshold determinations, the
Court held that the Indiana ROP statutes newsworthiness and public interest exceptions
effectively swallow whole the liability provision of the ROP statute. Commercial speech is speech
which proposes a commercial transaction, Jordan, 743 F.3d at 516, and here, the commercial
- 41 -
transaction proposed (and consummated thousands of times) was the purchase and sale of the
Plaintiffs themselves. The District Courts dismissal contradicts the plain language of the statute,
the purpose of the statute, and well-established case law that the constitutional freedom for speech
and press does not extend[] its immunity to speech or writing used as an integral part of conduct
in violation of a valid criminal statute. Giboney, 336 U. S. at 498.
The District Courts Memorandum Opinion dismissing Plaintiffs First Amended
Complaint (Dkt. 75) should be reversed, and the matter remanded for discovery and trial.
Dated: November 14, 2017 Respectfully submitted,
s/ W. Clifton Holmes
W. Clifton Holmes
THE HOLMES LAW GROUP, LTD.
350 N. Orleans St.
Suite 9000N
Chicago, IL 60654
(312) 721-0779
holmes@theholmeslawgroup.com
Counsel for Plaintiffs-Appellants
s/ Todd L. McLawhorn
Todd L. McLawhorn
SIPRUT PC
17 North State Street, Suite 1600
Chicago, IL 60602
312-236-0000
tmclawhorn@siprut.com
s/ Stephen B. Caplin
Stephen B. Caplin (3102-49)
STEPHEN B. CAPLIN
PROFESSIONAL CORPORATION
9245 North Meridian Street, Suite 301
Indianapolis, Indiana 46260
(317) 815-8600
sbcaplin@gmail.com
- 42 -
CERTIFICATE OF COMPLIANCE
WITH TYPE-VOLUME LIMITATIONS, TYPEFACE REQUIREMENTS
AND TYPE STYLE REQUIREMENTS
This brief complies with the length limitations of Fed. R. App. P. 32(a)(7)(A), the type-
volume limitations of Fed. R. App. P. 32(a)(7)(B), and Circuit Rule 32(c) because it contains
13,036 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f). This brief
complies with the typeface requirements of Circuit Rule 32, Fed. R. App. P. 32(a)(5), and Fed. R.
App. P. 32(a)(6), because it has been prepared using a proportionally spaced typeface using
Microsoft Word 2010 with 12-point Times New Roman font.
DATED: November 14, 2017
Attorney for Plaintiffs-Appellants
I hereby certify that on November 14, 2017, I electronically filed the foregoing with the
Clerk of the United States Court of Appeals for the Seventh Circuit by using the CM/ECF system,
thereby effecting service on counsel of record who are registered for electronic filing under Circuit
Rule 25(a).
APPENDIX
CERTIFICATE OF COMPLIANCE
This Appendix complies with Circuit Rule 30(d) in that all of the materials required by
parts (a) and (b) of Circuit Rule 30 are included.
DATED: November 14, 2017

APPENDIX: TABLE OF CONTENTS
District Courts September 29, 2017 Entry on Defendants Motions to Dismiss

Amended Complaint (Dkt. 75) .......................................................................................... 1
Indiana Code 32-36-1-1, et seq. ..................................................................................................26
Case 1:16-cv-01230-TWP-DML Document 75 Filed 09/29/17 Page 1 of 25 PageID #: 575

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
AKEEM DANIELS, CAMERON STINGILY, )

and NICHOLAS STONER, )
)
Plaintiffs, )
)
v. ) Case No. 1:16-cv-01230-TWP-DKL
)
FANDUEL, INC., and DRAFTKINGS, INC., )
)
Defendants. )
ENTRY ON DEFENDANTS MOTIONS TO DISMISS AMENDED COMPLAINT
This matter is before the Court on the Defendants Motions to Dismiss Pursuant to Federal
Rule of Civil Procedure 12(b)(6). (Filing No. 26; Filing No. 28.) Also before the Court is Plaintiffs
Motion for Leave to file a Surreply. (Filing No. 61.) The Plaintiffs, Akeem Daniels, Cameron
Stingily, and Nicholas Stoner (collectively, Plaintiffs) are individuals who played football at the
collegiate level. They have filed suit against Defendants FanDuel, Inc. (FanDuel) and
DraftKings, Inc. (DraftKings) (collectively, Defendants), companies that run fantasy sports
websites and mobile apps. Plaintiffs allege that FanDuel and DraftKings used their names and
likenesses in operating and promoting online fantasy sports contests without Plaintiffs consent,
and that doing so was a violation of their right of publicity under Indiana law. Defendants argue
that Plaintiffs have not stated a claim upon which relief can be granted, because a series of statutory
exceptions, the First Amendment to the United States Constitution, and federal copyright law all
shield Defendants from liability under Indianas right-of-publicity statute. For the reasons that
follow, the Court grants the Defendants Motions to Dismiss and denies as moot, the Plaintiffs
Motion for Leave to file a Surreply.
App. 1
I. BACKGROUND
The following facts are not necessarily objectively true. But as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the Amended Complaint and
draws all reasonable inferences in favor of Plaintiffs as the nonmoving party. See Bielanski v.
County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).
Defendants run daily fantasy sports companies, operated via websites and mobile
platforms. (Filing No. 17 at 4.) In these daily fantasy sports games, a customer pays Defendants
an entry fee, and in exchange receives virtual currency. (Filing No. 17 at 4.) To create the fantasy
competition, Defendants assemble a group of select collegiate players to appear on a list of
available athletes, and they assign each player a fictitious salary. (Filing No. 17 at 7.) Using his
virtual currency, a customer can then purchase the services of individual athletes to complete his
team roster for each fantasy contest, subject to a salary cap assigned to each customer. (Filing
No. 17 at 7.) Defendants have developed systems by which certain numbers of points are awarded
for selected statistically tracked athletic achievements. (Filing No. 17 at 4.) Based on the athletes
real-life performances in sporting events, each athlete on the fantasy team scores a certain number
of points in each contest. (Filing No. 17 at 4.) For example, an athlete may receive points for
scoring a touchdown in football or making a three-point shot in basketball. (Filing No. 17 at 4.)
Those points are then aggregated, and a customer is eligible to win cash prizes if his fantasy teams
performance exceeds the performance of other customers teams. (Filing No. 17 at 4.)
Plaintiffs are individuals who played football at the collegiate level for institutions
governed by the constitution and bylaws of the National Collegiate Athletic Association
(NCAA). (Filing No. 17 at 2-3; Filing No. 17 at 5-6.) The three named Plaintiffs were featured
on Defendants sites. (Filing No. 17 at 11-23.) Their names appeared on the roster of available
App. 2
players on at least one occasion. (Filing No. 17 at 11-23.) They were each assigned fictitious
salaries during the weeks that they were featured as available athletes. (Filing No. 17 at 11-23.)
Commentary regarding Plaintiffs likely performance, as compared to their assigned salaries (their
value), also appeared on the sites. (Filing No. 17 at 11-23.)
It is estimated that the daily fantasy sports industry generated roughly $3.0 billion in
customer entry fees in 2015. (Filing No. 17 at 1.) Defendants use sophisticated marketing
campaigns to attract users to their websites, and they use athletes names and likenesses in that
marketing. (Filing No. 17 at 16; Filing No. 17 at 23.) Numerous media outlets produce weekly
fantasy sports-related broadcasts, offering strategy and advice for success in fantasy competition.
(Filing No. 17 at 25.)
Plaintiffs have filed an Amended Complaint in this Court, alleging that Defendants violated
Plaintiffs rights of publicity under Indiana Code Section 32-36-1-1 et seq. (Filing No. 17.)
Defendants have each filed Motions to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6), arguing that
Plaintiffs have failed to state a claim upon which relief may be granted. (Filing No. 26; Filing No.
28.) The motions are ripe for the Courts consideration.
II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal if the complaint fails to set
forth a claim upon which relief can be granted. The purpose of a motion to dismiss is to test the
sufficiency of the complaint, not to decide the merits. Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). Accordingly, when analyzing a Rule 12(b)(6) motion to dismiss, a court
construes the complaint in the light most favorable to the plaintiff, accepts all factual allegations
as true, and draws all reasonable inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008).
App. 3
At a minimum, the complaint must give the defendant fair notice of what the claim is and
the grounds upon which it rests; and the factual allegations must raise a right to relief above the
speculative level. See Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009);
Tamayo, 526 F.3d at 1081, 1083. While a complaint need not include detailed factual allegations,
a plaintiff has the obligation to provide the factual grounds supporting his entitlement to relief; and
neither bare legal conclusions nor a formulaic recitation of the elements of a cause of action will
suffice in meeting this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (the pleading standard Rule 8 . . . demands more than
an unadorned, the-defendant-unlawfully-harmed-me accusation and [t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice).
Although this does not require heightened fact-pleading, it does require the complaint to
contain enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at
570; Tamayo, 526 F.3d at 1083 ([a] plaintiff still must provide only enough detail to give the
defendant fair notice of what the claim is and the grounds upon which it rests, and, through his
allegations, show that it is plausible rather than merely speculative, that he is entitled to relief).
III. DISCUSSION
Indiana Code Section 32-36-1-8(a) provides that a person may not use an aspect of a
personalitys right of publicity for a commercial purpose during the personalitys lifetime or for
one hundred (100) years after the date of the personalitys death without having obtained previous
written consent from a person specified in section 17 of this chapter. Ind. Code 32-36-1-8(a).
The statute defines a persons right of publicity as a personalitys property interest in the
personalitys: (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7)
distinctive appearance; (8) gestures; or (9) mannerisms. Ind. Code 32-36-1-7. Plaintiffs allege
App. 4
that Defendants have violated Ind. Code 32-36-1-8(a) by featuring Plaintiffs on their fantasy
sports sites.
Defendants have moved for dismissal, raising three arguments as to why Plaintiffs claims
cannot succeed: (1) that four statutory exceptions remove the subject materials from the coverage
of the right-of-publicity statute; (2) that Defendants First Amendment rights trump any publicity
rights that Plaintiffs may have; and (3) that Plaintiffs claims are preempted by federal copyright
law.
A. Statutory Exceptions
Indiana Code Section 32-36-1-1 designates the applicability of the chapter regarding the
right of privacy under Indiana law. Subsection (c) specifies that the chapter, and therefore Indiana
Code Section 32-36-1-8(a), does not apply to, inter alia, the following:
1. The use of a personalitys name, voice, signature, photograph, image, likeness,

distinctive appearance, gestures, or mannerisms in material that has political or
newsworthy value. Ind. Code 32-36-1-1(c)(1)(B) (emphasis added).

distinctive appearance, gestures, or mannerisms in connection with the
broadcast or reporting of an event or a topic of general or public interest. Ind.
Code 32-36-1-1(c)(3) (emphasis added).

distinctive appearance, gestures, or mannerisms in literary works. Ind. Code.
32-36-1-1(c)(1)(A) (emphasis added).
4. The use of a personalitys name to truthfully identify the personality as the

performer of a recorded performance. Ind. Code 32-36-1-1(c)(2)(B)
(emphasis added).
Defendants argue that these enumerated statutory exceptions remove their conduct from
the coverage of the right of publicity statute. (Filing No. 29 at 21-22; Filing No. 27 at 5-6.)
Defendants argue that if the Court concludes that even one of those exceptions applies, Plaintiffs
claims fail as a matter of law. Plaintiffs respond that none of the statutory exceptions apply. (Filing
App. 5
No. 44 at 28-40.) Plaintiffs further argue that even if any of the exceptions would otherwise apply,
they do not in this instance because Defendants were engaged in illegal gambling activities. (Filing
No. 44 at 20-28.) Because this issue is dispositive, the Court begins its analysis by addressing the
exceptions.
1. Newsworthiness Exception
Indiana Code 32-36-1-1(c)(1)(B) specifies that the right to publicity does not apply to
[t]he use of a personalitys name, voice, signature, photograph, image, likeness, distinctive
appearance, gestures, or mannerisms in material that has political or newsworthy value.
a. Definition of Newsworthy
Defendants contend that the statutory exception for material that has political or
newsworthy value removes their conduct from the ambit of the right-of-publicity statute. (Filing
No. 27 at 10; Filing No. 29 at 22.) They assert that under Indiana law, newsworthiness is broadly
construed and includes the material that is disseminated via their websites. (Filing No. 27 at 10;
Filing No. 29 at 23.) Defendants further argue that courts have concluded that entertainment falls
within the newsworthiness exception, which includes the conduct at issue here. (Filing No. 27 at
10-12; Filing No. 29 at 23-24.)
Plaintiffs respond that the newsworthiness exception does not apply to shield Defendants
conduct, because that exception applies only to non-commercial speech. (Filing No. 44 at 29-44.)
They also contend that case law supports applying the newsworthiness exception to news or media
outlets, but not to entities such as Defendants, who are not reporting information. (Filing No.
44 at 30-31.) In addition, they argue that Defendants made representations that were distinct from
the dissemination of news and statistics by assigning Plaintiffs fictitious salaries, and that those
representations would not be encompassed by the exception. (Filing No. 44 at 32.)
App. 6
On reply, Defendants argue that the exceptions enumerated in Indiana Code 32-36-1-1
must apply to commercial speech, because the right-of-publicity statute explicitly applies only to
commercial speech. (Filing No. 51 at 8; Filing No. 52 at 12-13.) In other words, non-commercial
speech is already immune from treatment by the statute, so exceptions applying only to non-
commercial speech would be superfluous and unnecessary. (Filing No. 51 at 8; Filing No. 52 at
13.)
The Court begins by underscoring that, by its terms, Indiana Code 32-36-1-8(a) provides
that a person may not, without consent, use an aspect of a personalitys right of publicity for a
commercial purpose during the personalitys lifetime or for one hundred (100) years after the date
of the personalitys death Ind. Code 32-36-1-8(a) (emphasis added). The Court agrees with
Defendants that, by the statutes own plain and explicit language, 32-36-1-8(a) applies to the use
of a persons right of publicity when that use has a commercial purpose. Therefore, the universe
of prohibited conduct is, from the outset, limited to material that is used for a commercial purpose.
The enumerated exceptions then carve out certain categories of uses that will not trigger liability.
Because the statue only applies to uses with a commercial purpose, the exceptions must apply to
uses that are commercial in nature.
The first key issue, then, is to determine the contours of the term newsworthy under
Indiana law. Notably, neither the parties nor the Court uncovered any cases addressing the
newsworthiness exception under Indiana Code 32-36-1-1(c)(1)(B). Sitting in diversity, the
courts role is not to create state law, but rather to follow the principles enunciated by the state
courts and to predict what the Indiana Supreme Court would hold in such a situation. Miller v.
Pardners, Inc., 893 F.2d 932, 934 (7th Cir. 1990). This Court must predict how the Indiana
Supreme Court would decide the case, and decide it the same way. MindGames, Inc. v. W.
App. 7
Publg Co., 218 F.3d 652, 655 (7th Cir. 2000) (citations omitted). Because neither the Indiana
Supreme Court nor the Indiana Court of Appeals have weighed in on this issue, this Court must
base its decision on whatever authority is available. A determination of what is newsworthy may
be made as a matter of law. See Dillinger, LLC v. Electronic Arts, Inc., 795 F. Supp. 2d 829, 835
(S.D. Ind. 2011) (determining whether literary works exception applied at the motion for
judgment on the pleadings stage).
Defendants argue that under Indiana law, the term newsworthy is broadly construed.
(Filing No. 29 at 22.) They contend that the definition articulated by this Court in Time Inc. v.
Sand Creek Partners, L.P., 825 F.Supp. 210 (S.D. Ind. 1993) illustrates the breadth of the
newsworthiness exception. In that case, the Court concluded that:
[t]he scope of the subject matter which may be considered of public interest or
newsworthy has been defined in most liberal and far reaching terms. The
privilege of enlightening the public is by no means limited to dissemination of news
in the sense of current events but extends far beyond to include all types of factual,
educational and historical data, or even entertainment and amusement, concerning
interesting phases of human activity in general.
Sand Creek, 825 F. Supp. 210 at 211-12 (quoting Rogers v. Grimaldi, 695 F. Supp. 112, 117
(S.D.N.Y. 1988)). Plaintiffs contend that Sand Creek does not apply here, because that case was
decided prior to the enactment of Indianas right-of-publicity statute. (Filing No. 44 at 30.)
Deciding whether to adopt the broad definition of newsworthy that Defendants propose
has significant constitutional implications. A holding that the newsworthiness exception does not
apply in this context would set the right-of-publicity statute up for a constitutional challenge,
because it would constitute the enforcement of a limitation on a private partys freedom of
expression. See Filing No. 29 at 28-41; see also Dillinger, 795 F. Supp. 2d at 835-36. When faced
with ambiguous statutory language, the Indiana Supreme Court follows the familiar canon of
App. 8
statutory interpretation that statutes should be interpreted so as to avoid constitutional issues. City
of Vincennes v. Emmons, 841 N.E.2d 155, 162 (Ind. 2006) (citations omitted).
Interpreting newsworthiness broadly would effectuate the General Assemblys obvious
attempt to avoid potential constitutional infirmities with the statute. As pointed out in Dillinger,
the other exceptions in the same subsection all involve materials that are also
protected under the First Amendment: theatrical works, musical compositions,
film, radio, or television programs ... original works of fine art ... promotional
material or an advertisement for a news reporting or an entertainment medium
[and] an advertisement or commercial announcement for a use described in this
subdivision.
Id. (citing Ind. Code 32-36-1-1(c)(1); see also, Ward v. Rock Against Racism, 491 U.S. 781, 790
(1989) (music); Bd. of Trs. v. Fox, 492 U.S. 469, 477 (1989) (commercial speech); Zacchini v.
ScrippsHoward Broadcasting Co., 433 U.S. 562, 578 (1977) (news and broadcast entertainment);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975) (theatrical works); Jenkins v.
Georgia, 418 U.S. 153, 156 (1974) (film)).
And while Plaintiffs point is well-taken that Sand Creek was decided prior to the
enactment of Indianas right-of-publicity statute, that fact does not by itself render Sand Creek
inapplicable. The case law involving the definition of newsworthiness at common law
developed and was in place before the passage of this statute. Under Indiana law, [t]he legislature
is presumed to know the common law and to incorporate it into the statute except where it
expressly indicates otherwise. Bailey v. Manors Grp., 642 N.E.2d 249, 252 (Ind. Ct. App. 1994).
If the legislature intended for the term newsworthy to have a different definition under the statute
than the one that had already developed through common law, the legislature could have indicated
as much.
App. 9
For these reasons, the Court finds that the Indiana Supreme Court would conclude that the
broad definition of newsworthy, as developed at common law, applies to the statutory exception
listed in the right-of-publicity statute.
b. Whether the Materials at Issue are Newsworthy
Having determined that the common law definition of newsworthy applies here, the
Court next must determine whether the materials at issue fall within the newsworthiness exception
to the statute. Defendants contend that they fall within the exception because college sports and
the activities of collegiate athletes are newsworthy. (Filing No. 29 at 23-24.) Plaintiffs respond
that Defendants may not avail themselves of the newsworthiness exception, because they are not
news organizations. (Filing No. 44 at 33.) Plaintiffs also argue that Defendants creation of
fictitious salaries removes the materials at issue from coverage by the exception. (Filing No. 44
at 32-33.) In reply, the Defendants argue that nothing in the statute limits its application to news
or media outlets. (Filing No. 52 at 13-14.) They also contend that Indianas right-of-publicity
statute applies only to certain enumerated personal features, such as names and likenesses. (Filing
No. 52 at 15.) As such, extraneous content, such as fantasy salaries, are beyond the coverage of
the right-of-publicity statute, and not implicated here. (Filing No. 52 at 15.)
The Court again turns to the Sand Creek formulation, which noted the breadth of the term
newsworthy. The court described that:
[t]he scope of the subject matter which may be considered of public interest or
newsworthy has been defined in most liberal and far reaching terms. The
privilege of enlightening the public is by no means limited to dissemination of news
in the sense of current events but extends far beyond to include all types of factual,
educational and historical data, or even entertainment and amusement, concerning
interesting phases of human activity in general.
Sand Creek, 825 F. Supp. 210 at 211-12 (quoting Rogers, 695 F. Supp. at 117). The Court
concludes, as have a number of other courts that have considered the issue in the context of
10
App. 10
professional sports, that Plaintiffs athletic achievements and activities are newsworthy as
contemplated by the statutory exception. See, e.g., Dryer v. National Football League, 55 F. Supp.
3d 1181, 1198 (D. Minn. 2014) (concluding that there is no dispute that both professional baseball
and professional footballare closely followed by a large segment of the public) (quoting
Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400, 411 (2001)). This is no less true for
collegiate athletics, as is demonstrated by, among other indicators, the plethora of media outlets
dedicated to the coverage of collegiate sporting events. The court in Moore v. Univ. of Notre
Dame, 669 F. Supp. 1330, 1336 n.11 (N.D. Ind. 1997), for example, concluded that college football
is a matter of public interest. The court reasoned that [g]iven the growing number of television
sports channels and the number of publications relating specifically to sports, this court cannot
ignore the fact that this is a matter of public concern. Id. Therefore, the use of Plaintiffs names,
likenesses, and the statistical accounts of their athletic achievements fall within the statutory
exception. 1
Plaintiffs contend that the materials at issue nonetheless do not fall within the
newsworthiness exception, because Defendants are not news organizations and do not engage
in reporting to the public by any common understanding of the term. (Filing No. 44 at 33.) But
the statute does not explicitly require that the user of a personalitys name or likeness be engaged
in reporting, or be a news or media outlet. Ind. Code 32-36-1-1(c)(1)(B). Absent a specific
reference to such a requirement, the Court will not read one in. Other provisions of the same
statute, for example, refer specifically to news and reporting mediums, and the statute specifically
defines the term news reporting or entertainment medium. See Ind. Code 32-36-1-4. And,
as discussed in more detail below, another statutory exemption applies to the broadcast or
1
The parties agree that, for the purposes of these motions, statistical information regarding Plaintiffs constitutes a
likeness under the statute.
11
App. 11
reporting of information about a personality, where no such requirement is listed here. See Ind.
Code 32-36-1-1(c)(3) (public interest exception).
Finally, Plaintiffs argue that the newsworthiness exception does not apply, taking issue
with two other types of materials on Defendants fantasy sports sites: the assignment of fictitious
salaries to Plaintiffs and commentary posted in comment fields or in commentary/blog portions of
the sites. (Filing No. 44 at 32-33; Filing No. 17 at 23.) The right-of-publicity statute does not
prohibit individuals from the use of all materials regarding a personality; instead, it defines a
persons right of publicity as including that persons name, voice, signature, photograph, image,
likeness, distinctive appearance, gestures, and mannerisms. Ind. Code 32-36-1-7. Plaintiffs do
not allege specifically whether the assignment of fictitious salaries constitutes a name or a
likeness, as contemplated by the statute. Rather, in their Amended Complaint, Plaintiffs allege
that the fictitious salaries are associated with Plaintiffs names.
However, Plaintiffs read the statute more broadly than its plain language allows. The
statute does not prohibit the use of materials associated with the name, likeness, or any other of
the enumerated aspects of an individuals personalityit prohibits the use of the names and
likenesses themselves. Adopting Plaintiffs reading of the statute would bring an almost limitless
universe of materials within its reach, with obvious First Amendment implications. For these
reasons, the Court concludes that the fictitious salaries and commentary do not constitute a
persons name or likeness, and they are not encompassed within the definition of a persons right
of publicity.
For these reasons, the Court concludes that the materials challenged by Plaintiffs fall within
the newsworthiness exception to Indianas right-of-publicity statute, and therefore the
12
App. 12
prohibition of using an individuals right of publicity without his consent does not apply to
Defendants conduct. The Court, therefore, grants Defendants Motions to Dismiss on this issue. 2
2. Public Interest Exception

The so-called public interest exception to Indianas right-of-publicity statute exempts the
use of a persons right of publicity in connection with the broadcast or reporting of an event or a
topic of general or public interest. Ind. Code 32-36-1-1(c)(3). Defendants argue that, for
reasons largely overlapping with the newsworthiness exception, the public interest exception
applies to the materials at issue. (Filing No. 29 at 25.) Plaintiffs argue that Defendants use of
Plaintiffs names and likenesses was not done in connection with the broadcast or reporting of
an event of public interest, and therefore the exception does not apply. (Filing No. 44 at 34.)
Again, neither the parties nor the Court have identified any Indiana Supreme Court or Court of
Appeals case involving this provision, so the Court must determine how an Indiana court would
likely decide this issue.
The Court concludes that, for the same reasons that the subject materials are newsworthy,
they are also matters of public interest. As the Sand Creek court noted, content falling within those
two definitions will often overlap, and they are both to be construed broadly. Sand Creek, 825 F.
Supp. 210 at 211-12 (quoting Rogers, 695 F. Supp. at 117) (The scope of the subject matter which
may be considered of public interest or newsworthy has been defined in most liberal and far
reaching terms.); see also Moore, 669 F. Supp. at 1336 n.11 (concluding that college football is
a matter of public interest).
2
To the extent that Plaintiffs also challenge Defendants advertising, the Court concludes that because this exception
applies, Ind. Code 32-36-1-1(c)(1)(E) also exempts related advertising from an individuals right of publicity. See
Ind. Code 32-36-1-1(c)(1)(E) (stating that statute does not apply to [t]he use of a personalitys name, voice,
signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in an advertisement or
commercial announcement for a use described in this subdivision.).
13
App. 13
However, a key difference between the two provisions is that the public interest exception
includes the condition that the use of a persons right of publicity be done in connection with the
broadcast or reporting of an event or a topic, and the newsworthiness exception does not. Ind.
Code 32-36-1-1(c)(3) (emphasis added). The legislature carved out distinct exceptions, and
Indiana has long followed the rule of interpretation that a statute should be construed so as to give
effect to all of its parts. Huff v. Fetch, 194 Ind. 570, 143 N.E. 705, 707 (1924) (It is not necessary
to cite authority to the proposition that an act should be so construed as to give effect to all its
parts, if such a construction is reasonable.).
Therefore, the key issue is whether Defendants conduct constitutes broadcasting or
reporting under the statute. Defendants contend that their websites report information about
college sports, because they profile players on their websites; corral [the] weeks news, notes and
injury updates; and disseminate performance information. (Filing No. 51 at 10.) The Court notes
that this is not all Defendants do with Plaintiffs likenesses. In addition, they provide an interactive
medium through which playersidentified by their names and statistical achievementsmay be
assembled onto fictitious teams to engage in competition with other fictitious teams. The question
is whether that particular use therefore removes Defendants conduct from being properly
understood as reporting.
As the Court noted above, the Indiana Supreme Court follows the familiar canon of
statutory interpretation that statutes should be interpreted so as to avoid constitutional issues.
Emmons, 841 N.E.2d at 162. Interpreting reporting broadly would effectuate the General
Assemblys obvious attempt to avoid potential constitutional infirmities with the statute.
The Ninth Circuit in In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724
F.3d 1268, 1271 (9th Cir. 2013), considered a similar challenge raised by former student athletes
14
App. 14
to a video game, which allowed individuals to control avatars representing college football
players as those avatars participate in simulated games. That game replicated each schools entire
team, with each player having a corresponding avatar in the game with the players actual jersey
number and virtually identical height, weight, build, skin tone, hair color, and home state. EA
attempts to match any unique, highly identifiable playing behaviors by sending detailed
questionnaires to team equipment managers. In re NCAA, 724 F.3d at 1271. The athletes names,
however, did not appear on their jerseys or roster in the game. Id. A former player brought suit
against EA Sports, the video game developer, contending that the game violated his right to
publicity under California law. Id. at 1282.
EA Sports raised defenses under both common law and the California right-to-publicity
statute. Id. In both instances, those defenses protect[ed] only the act of publishing or reporting
matters of public interest. Id. The court concluded that the material at issue did not constitute
publishing or reporting, reasoning that:
EA is not publishing or reporting factual data. EAs video game is a means by

which users can play their own virtual football games, not a means for obtaining
information about real-world football games. Put simply, EAs interactive game
is not a publication of facts about college football; it is a game, not a reference
source. These state law defenses, therefore, do not apply.
Id. at 1283. In a footnote to this passage, however, the Ninth Circuit rejected the dissents
argument that the Ninth Circuit should conclude, as did the Eighth Circuit in C.B.C., that because
the video game was based on publicly available data, no violation of publicity rights had occurred.
The court stated:
[The dissent] compares NCAA Football to the fantasy baseball products that the
Eighth Circuit deemed protected by the First Amendment in the face of a right-of-
publicity claim in C.B.C. Distribution and Marketing, 505 F.3d at 823-24. But
there is a big difference between a video game like NCAA Football and fantasy
baseball products like those at issue in C.B.C. Those products merely
incorporate[d] the names along with performance and biographical data of actual
15
App. 15
major league baseball players. NCAA Football, on the other hand, uses virtual
likenesses of actual college football players.
Id. at 1283 (citing C.B.C. Distribution and Marketing, Inc. v. Major League Baseball Advanced
Media, L.P., 505 F.3d 818 (8th Cir. 2007)).
Here, unlike the video game at issue in In re NCAA, Defendants do provide factual data,
and their websites could be used as reference sources, either for purposes of playing the
associated game, or for information about the collegiate sports and athletes represented on the
websites. While that factual data is integrated into a game, the actual names and likenesses
identified by Plaintiffs are comprised of information about real-world games and players. See
also C.B.C., 505 F.3d at 823 (concluding that the information used in CBCs fantasy baseball
games is all readily available in the public domain).
The Court acknowledges that this is a close call. But given Indianas interpretive
preference to read statutes in a manner that avoids constitutional issues, as well as other Circuits
reasoning on similar issues, the Court concludes that Defendants materials constitute reporting,
as that term is used in Ind. Code 32-36-1-1(c)(3).
For these reasons, the Court concludes that the materials challenged by Plaintiffs fall within
the public interest exception to Indianas right-of-publicity statute, and therefore the prohibition
of using an individuals right of publicity without his consent does not apply to Defendants
conduct. The Court, therefore, grants Defendants Motions to Dismiss on this basis as well.
3. Literary Works Exception
Defendant DraftKings argues that the fantasy sports contests at issue fall within the
literary works exception created by the statute. (Filing No. 29 at 26, citing Ind. Code 32-36-
1-1(c)(1)(A).) DraftKings contends that the exception should be interpreted broadly, and that the
subject websites are analogous to video games that have been held to be encompassed by the
16
App. 16
exception. (Filing No. 29 at 27.) DraftKings also points to the copyright law context in which
computer programs and video games can be copyrighted as literary works. (Filing No. 29 at 27-
28.) Again, Plaintiffs argue that the exception should not be read so broadly, and that the fantasy
sports websites are not analogous to computer programs or video games. (Filing No. 44 at 36-38.)
Plaintiffs contend that DraftKings reading of the exception would render all content conveyed via
websites literary works, which is a result not intended by the legislature in enacting the statutory
exceptions. (Filing No. 44 at 37-38.)
At the motion to dismiss stage, the Court simply cannot conclude that the websites at issue
fall within the literary works exception. First, DraftKings points to other courts conclusions that
video games are literary works, and they argue that their websites had attributes analogous to
electronic gamesthat have been held to constitute literary works. (Filing No. 29 at 27.) The
Court notes, however, that DraftKings attempts to thread a very fine needle with this argument,
given the position they have taken regarding the public interest exception. In attempting to
distinguish their case from Keller and Davis, in which courts concluded that sports-related video
games did not constitute publication or reporting, Defendants argued that their fantasy sports
websites were unlike those games, in that they did not allow users to create avatars through which
to play their own virtual football games. (Filing No. 51 at 10-11.) Second, DraftKings does not
articulate why the particular features of fantasy sports competitions are similar to the video games
that courts have determined constitute literary works. And, the particular features of the fantasy
sports competitionssuch as their technical similarities to or differences with computer programs
or video gamesare factual issues not before this Court at the motion to dismiss stage.
Therefore, the Court cannot conclude at this stage that Defendants websites constitute
literary works within the meaning of Ind. Code 32-36-1-1(c)(1)(A).
17
App. 17
4. Performers of Recorded Performances Exception 3

Indiana Code Section 32-36-1-1(c)(2)(B) specifically exempts from the statutes coverage
[t]he use of a personalitys name to truthfully identify the personality as the performer of a
recorded performance under circumstances in which the written work or recorded performance is
otherwise rightfully reproduced, exhibited, or broadcast. The parties have not cited, and the Court
has not located, any cases applying this exception. Therefore, again, this Court must predict how
the Indiana Supreme Court would decide the case.
Defendants argue that the inclusion of Plaintiffs names on the fantasy sports websites
truthfully identified Plaintiffs as performers of recorded performances, and therefore that such use
is exempted by Ind. Code 32-36-1-1(c)(2)(B). (Filing No. 27 at 14-15.) Plaintiffs respond that
Defendants did not exhibit, reproduce, or broadcast any recorded performances, so this exception
does not apply. (Filing No. 44 at 38-39.) In reply, Defendants argue that the statute does not
require them to be the entity that otherwise rightfully reproduce[s], exhibit[s], or broadcast[s] the
recorded performance. (Filing No. 52 at 18.)
The Court concludes that even if Defendants are correct that they need not be the entities
that broadcast the recorded performance, that issue is not determinative here. The decisive issue
is that Defendants use Plaintiffs names and likenesses for purposes other than to identify them as
performers of a recorded performance. At a minimum, Defendants also listed selections of
Plaintiffs athletic and statistical achievements. 4 The statute itself only lists a personalitys name
as subject to coverage by this exception, and Defendants have offered no justification as to why it
3
Defendant DraftKings does not separately brief this issue, but joins in Defendant FanDuels briefing. (Filing No. 29
at 21.)
4
And, though none of the parties address the significance of this fact, Defendants also identified Plaintiffs as members
or potential members of customers fantasy teams of players.
18
App. 18
should expanded to cover the other usesincluding Plaintiffs likenessesthat are at issue in this
case.
The Court therefore concludes that the performer of a recorded performance exception
does not apply to the materials at issue.
5. Effect of Alleged Illegal Conduct
Plaintiffs contend that if the Court concludes that any of the statutory exceptions would
otherwise apply, they cannot in this instance, because Defendants were engaged in illegal conduct
by operating their fantasy sport websites in Indiana. (Filing No. 44 at 20.) Defendants respond
that Plaintiffs cite no authority to support the contention that allegedly illegal behavior negates the
applicability of the statutory exemptions, and that in any event, their conduct was not illegal.
(Filing No. 52 at 8-11.)
Setting aside the issue of whether it would be appropriate for this Court to make a finding
as to whether Defendants engaged in conduct that violated Indiana law, Plaintiffs provide no
authority or citation to support the contention that illegal behavior would render Defendants
materials somehow outside the scope of the statutory exceptions. The statute itself does not include
any such provision, and Plaintiffs have cited no other authority or rule of law in support of their
contention. The Court cannot conclude that, even if Defendants were engaged in illegal conduct,
such conduct would render Indiana Code 32-26-1-1 inapplicable. 5
5
Plaintiffs have filed a Motion for Leave to File Surreply (Filing No. 60), contending that the Defendants raised
argument regarding the legality of their conduct for the first time in their reply, thus entitling the Plaintiffs to address
those arguments through a supplemental filing. Because the Court concludes that the legality of the Defendants
conduct has no bearing on the resolution of this issue, the Plaintiffs Motion is denied as moot.
19
App. 19
B. First Amendment Defense
Defendants argue that, in addition to the statutory exemptions, the use of Plaintiffs names
and likenesses is speech protected by the First Amendment. (Filing No. 29 at 28.) Defendants
argue that under three different tests employed by courts in evaluating First Amendment claims,
the materials at issue constitute protected speech. (Filing No. 29 at 28.) Plaintiffs respond that the
materials at issue are commercial speech and are therefore subject to lesser First Amendment
protections. (Filing No. 44 at 40.) Plaintiffs also argue that Seventh Circuit precedent establishes
that Defendants speech is not protected by the First Amendment, and that under the application
of any test, Defendants are not entitled to a First Amendment defense. (Filing No. 44 at 47-56.)
Defendants argument that the First Amendment shields their conduct from liability
represents an affirmative defense. The Seventh Circuit has concluded that when the existence
of a valid affirmative defense is so plain from the face of the complaint that the suit can be regarded
as frivolous, the district judge need not wait for an answer before dismissing the suit. Walker v.
Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002); see also Xechem, Inc. v. Bristol-Myers Squibb
Co., 372 F.3d 899, 901 (7th Cir. 2004) ([o]rders under Rule 12(b)(6) are not appropriate responses
to the invocation of defenses, for [parties] need not anticipate and attempt to plead around all
potential defenses, and only when [a party] pleads itself out of courtthat is, admits all the
ingredients of an impenetrable defensemay a [pleading] that otherwise states a claim be
dismissed under Rule 12(b)(6)); Doe v. GTE Corp., 347 F.3d 655, 657 (7th Cir. 2003)
([a]ffirmative defenses do not justify dismissal under Rule 12(b)(6)).
The Court concludes that the existence of Defendants First Amendment defense is not so
plain from the face of the Amended Complaint that the suit can be regarded as frivolous. And
the Court concludes that consideration of this defense requires an analysis of evidence that is not
20
App. 20
possible or appropriate at the motion to dismiss stage. For example, the first issue facing the Court
in evaluating a First Amendment defense is to classify the speech at issue as either commercial or
non-commercial, and the Court concludes that it cannot do so at this stage. The First Amendment
prohibits the government from abridging the freedom of speech. U.S. Const. amend. I. The
Supreme Court has concluded that not all speech is of equal First Amendment importance, and
that some categories of speech receive a lesser degree of constitutional protection. Jordan v. Jewel
Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014) (citing Snyder v. Phelps, 562 U.S. 443, 453 (2011)).
Commercial speech is constitutionally protected but governmental burdens on this category of
speech are scrutinized more leniently. Id. (citing Bd. Of Trs. Of State Univ. of N.Y. v. Fox, 492
U.S. 469 (1989)).
While speech that does no more than propose a commercial transaction clearly falls within
the definition of commercial speech, so can speech that links a product to a current public debate,
or speech that links commercial and non-commercial elements. Jordan, 743 F.3d at 516-17. In
order to determine whether such mixed speech should be classified as commercial or non-
commercial, the Seventh Circuit has highlighted the following relevant considerations: whether
(1) the speech is an advertisement; (2) the speech refers to a specific product; and (3) the speaker
has an economic motivation for the speech. Id. at 517 (quoting United States v. Benson, 561 F.3d
718, 725 (7th Cir. 2009)). This is just a general framework, however; no one factor is sufficient,
and Bolger strongly implied that not all are necessary. Jordan, 743 F.3d at 517 (citing Bolger v.
Youngs Drug Prods. Corp., 463 U.S. 60, 67 n. 14 (1983)). 6
6
Defendants request the Court to forego the commercial versus non-commercial speech analysis, instead stating that
the Eighth Circuits decision (also on appeal of summary judgment) in C.B.C., 505 F.3d is dispositive of the present
suit. (Filing No. 29 at 29.) This Court is bound by the Seventh Circuits determinations, and Defendants have offered
no explanation as to why this Court would not be required to follow this Circuits practice of first characterizing the
speech at issue. As such, the Court declines Defendants invitation to simply apply the rationale articulated in C.B.C.
21
App. 21
In Jordan, a case in front of the Seventh Circuit on appeal of the grant of summary
judgment, the court carefully evaluated the specific advertisement at issue, examining its language,
the size and placement of text and images, and the background of the development of the
advertisement. Jordan, 743 F.3d at 512-13. At the motion to dismiss stage, the Court does not
have the proper factual and evidentiary basis to conduct such an analysis, and therefore cannot
make the threshold determination as to whether the speech at issue should be properly
characterized as commercial or non-commercial.
The Court therefore denies Defendants Motion to Dismiss on the grounds of a First
Amendment affirmative defense.
C. Preemption by Federal Copyright Law
The Copyright Act includes an express preemption provision which provides that all legal
or equitable rights that are equivalent to any of the exclusive rights within the general scope of
copyright ... are governed exclusively by [the Copyright Act]. 17 U.S.C. 301(a). As such, state
law rights granted by statute are only valid if they do not interfere with federal copyright
protections. Toney v. LOreal USA, Inc., 406 F.3d 905, 908 (7th Cir. 2005). DraftKings argues
that Indianas right-to-publicity statute is preempted by the Copyright Act. (Filing No. 29 at 41.)
Both DraftKings and Plaintiffs cite to the Seventh Circuits opinion in Toney as being
determinative here, but both parties overlook the particular aspect of Toney that decides the case.
In that case, plaintiff Toneys photograph was used without her permission to advertise a hair care
product. Toney, 406 F.3d at 907. She sued defendant LOreal pursuant to Illinois Right to
Publicity Act. Id. In deciding whether Toneys state law claim was preempted by the Copyright
Act, the Seventh Circuit highlighted that Illinois statute states that a persons identity is
protected by the statute, and that the statute defined identity to mean any attribute of an
22
App. 22
individual that serves to identify that individual to an ordinary, reasonable viewer or listener,
including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or
(vi) voice. Id. at 908 (citing 765 Ill. Comp. Stat. 1075/5). Further, the Court concluded that:
[t]he subject matter of such a claim is not a particular picture or photograph of

plaintiff. Rather, what is protected by the right of publicity is the very identity or
persona of the plaintiff as a human being. A photograph is merely one
copyrightable expression of the underlying work, which is the plaintiff as a
human being. There is only one underlying persona of a person protected by the
right of publicity. Id. In contrast, [t]here may be dozens or hundreds of
photographs which fix certain moments in that persons life. Copyright in each of
these photographs might be separately owned by dozens or hundreds of
photographers. A persona, defined in this way, can hardly be said to constitute a
writing of an author within the meaning of the copyright clause of the
Constitution.
Id. at 908-09 (citing Thomas McCarthy, 2 Rts. Of Publicity & Privacy 11:52 (2d ed. 2004))
(emphasis in original).
Toney, therefore, does not support DraftKings contention that the subject matter at issue
is a database of athlete names and statistics. (Filing No. 29 at 41.) The Court concludes that the
Indiana Act mirrors the Illinois Act in the respects highlighted by the Seventh Circuitit seeks to
protect the persona of the plaintiff, like the Illinois statute, by enumerating attributes unique to
each individual. The subject matters at issue here, as in Toney, are the personas of Plaintiffs, as
represented here by their names and likenesses.
The court in Toney then went on to evaluate the two conditions imposed by the Copyright
Act, which if met, require the preemption of the state law claim. First, whether the work at issue
is fixed in a tangible form and whether it comes within the subject matter of copyright as specified
in 102. Second whether the right is equivalent to the general copyright protections which are
set out in 106. Toney, 406 F.3d at 909. The court concluded that:
Toneys identity is not fixed in a tangible medium of expression. There is no work

of authorship at issue in Toneys right of publicity claim. A persons likeness
her personais not authored and it is not fixed. The fact that an image of the person
23
App. 23
might be fixed in a copyrightable photograph does not change this. From this we
must also find that the rights protected by the IRPA are not equivalent to any of
the exclusive rights within the general scope of copyright that are set forth in 106.
Copyright laws do not reach identity claims such as Toneys. Identity, as we have
described it, is an amorphous concept that is not protected by copyright law; thus,
the state law protecting it is not preempted.
Id. at 910. Having already concluded that this case is factually analogous to Toney, the Court
concludes that the same result is required here. Indianas right-of-publicity statute is not
preempted by the Copyright Act. As such, the Court denies DraftKings Motion to Dismiss on
the basis of preemption.
IV. CONCLUSION
The Court has determined that at least two of the statutory exceptions to Ind. Code 32-
36-1-8(a) apply, which removes Defendants conduct from coverage under Indianas right of
publicity statute. For the reasons explained in this Entry, the Defendants Motions to Dismiss,
(Filing No. 26; Filing No. 28), are GRANTED and Plaintiffs Motion for Leave to File Surreply
(Filing No. 60) is DENIED as moot. Final judgment shall issue.
SO ORDERED.
Date: 9/29/2017
24
App. 24
DISTRIBUTION:
John R. Maley
BARNES & THORNBURG LLP Philip R. Zimmerly
jmaley@btlaw.com BOSE MCKINNEY & EVANS, LLP
pzimmerly@boselaw.com
Benjamin Margulis
BOIES SCHILLER & FLEXNER LLP Kenneth L. Doroshow
bmargulis@bsfllp.com JENNER & BLOCK LLP
kdoroshow@jenner.com
Damien J. Marshall
BOIES SCHILLER & FLEXNER LLP Stephen B. Caplin
575 Lexington Ave. PROFESSIONAL CORPORATION
New York, New York 10022 sbcaplin@gmail.com
Leigh M. Nathanson Joseph J. Siprut

BOIES SHCILLER & FLEXNER LLP SIPRUT PC
lnathanson@bsfllp.com jsiprut@siprut.com
Craig Eldon Pinkus William Clifton Holmes

BOSE MCKINNEY & EVANS, LLP THE HOLMES LAW GROUP, LTD
cpinkus@boselaw.com holmes@theholmeslawgroup.com
25
App. 25
Source: Indiana General Assembly 2017 Session
http://iga.in.gov/legislative/laws/2017/ic/titles/032#32-36-1
IC 32-36 ARTICLE 36. PUBLICITY

Ch. 1. Rights of Publicity
IC 32-36-1 Chapter 1. Rights of Publicity

32-36-1-0.2 Application of certain amendments to prior law
32-36-1-1 Application of chapter
32-36-1-2 "Commercial purpose" defined
32-36-1-3 "Name" defined
32-36-1-4 "News reporting or an entertainment medium" defined
32-36-1-5 "Person" defined
32-36-1-6 "Personality" defined
32-36-1-7 "Right of publicity" defined
32-36-1-8 Consent required for commercial use of a personality's right of publicity;
application to the rights of a deceased personality
32-36-1-9 Jurisdictional acts
32-36-1-10 Damages
32-36-1-11 Profits derived from unauthorized use; proof
32-36-1-12 Additional remedies
32-36-1-13 Injunctive relief; enforceability against news reporting or entertainment
medium
32-36-1-14 Impoundment of materials pending resolution of action
32-36-1-15 Destruction or other disposition of offending materials
32-36-1-16 Property rights
32-36-1-17 Exercise and enforcement of rights and remedies
32-36-1-18 Exercise and enforcement of rights and remedies following death of intestate
personality; fractional interests
32-36-1-19 Termination of untransferred rights following personality's death
32-36-1-20 Rights and remedies supplemental to others provided by law
IC 32-36-1-0.2 Application of certain amendments to prior law

Sec. 0.2. The amendments made to IC 32-13-1-8 (before its repeal, now codified at section 8
of this chapter) by P.L.54-2001 apply only to written consents obtained after July 1, 2001.
As added by P.L.220-2011, SEC.530.
IC 32-36-1-1 Application of chapter

Sec. 1. (a) This chapter applies to an act or event that occurs within Indiana, regardless of a
personality's domicile, residence, or citizenship.
(b) This chapter does not affect rights and privileges recognized under any other law that
apply to a news reporting or an entertainment medium.
(c) This chapter does not apply to the following:
(1) The use of a personality's name, voice, signature, photograph, image, likeness,
distinctive appearance, gestures, or mannerisms in any of the following:
(A) Literary works, theatrical works, musical compositions, film, radio, or television
programs.
(B) Material that has political or newsworthy value.
App. 26
(C) Original works of fine art.
(D) Promotional material or an advertisement for a news reporting or an entertainment
medium that:
(i) uses all or part of a past edition of the medium's own broadcast or publication; and
(ii) does not convey or reasonably suggest that a personality endorses the news reporting
or entertainment medium.
(E) An advertisement or commercial announcement for a use described in this subdivision.
(2) The use of a personality's name to truthfully identify the personality as:
(A) the author of a written work; or
(B) a performer of a recorded performance;
under circumstances in which the written work or recorded performance is otherwise
rightfully reproduced, exhibited, or broadcast.
(3) The use of a personality's:
(A) name;
(B) voice;
(C) signature;
(D) photograph;
(E) image;
(F) likeness;
(G) distinctive appearance;
(H) gestures; or
(I) mannerisms;
in connection with the broadcast or reporting of an event or a topic of general or public
interest.
(4) A personality whose:
(A) name;
(B) voice;
(C) signature;
(D) photograph;
(E) image;
(F) likeness;
(G) distinctive appearance;
(H) gesture; or
(I) mannerisms;
have commercial value solely because the personality has been formally charged with or
convicted of a crime.
[Pre-2002 Recodification Citation: 32-13-1-1.]
As added by P.L.2-2002, SEC.21. Amended by P.L.149-2012, SEC.17.
IC 32-36-1-2 "Commercial purpose" defined

Sec. 2. As used in this chapter, "commercial purpose" means the use of an aspect of a
personality's right of publicity as follows:
(1) On or in connection with a product, merchandise, goods, services, or commercial
activities.
(2) For advertising or soliciting purchases of products, merchandise, goods, services, or for
promoting commercial activities.
App. 27
(3) For the purpose of fundraising.
IC 32-36-1-3 "Name" defined

Sec. 3. As used in this chapter, "name" means the actual or assumed name of a living or
deceased natural person that is intended to identify the person.
IC 32-36-1-4 "News reporting or an entertainment medium" defined

Sec. 4. As used in this chapter, "news reporting or an entertainment medium" means a
medium that publishes, broadcasts, or disseminates advertising in the normal course of its
business, including the following:
(1) Newspapers.
(2) Magazines.
(3) Radio and television networks and stations.
(4) Cable television systems.
IC 32-36-1-5 "Person" defined

Sec. 5. As used in this chapter, "person" means a natural person, a partnership, a firm, a
corporation, or an unincorporated association.
IC 32-36-1-6 "Personality" defined

Sec. 6. As used in this chapter, "personality" means a living or deceased natural person
whose:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness;
(7) distinctive appearance;
(8) gesture; or
(9) mannerisms;
has commercial value, whether or not the person uses or authorizes the use of the person's rights
of publicity for a commercial purpose during the person's lifetime.
IC 32-36-1-7 "Right of publicity" defined
App. 28
Sec. 7. As used in this chapter, "right of publicity" means a personality's property interest in
the personality's:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness;
(7) distinctive appearance;
(8) gestures; or
(9) mannerisms.
IC 32-36-1-8 Consent required for commercial use of a personality's right of publicity;

application to the rights of a deceased personality
Sec. 8. (a) A person may not use an aspect of a personality's right of publicity for a
commercial purpose during the personality's lifetime or for one hundred (100) years after the
date of the personality's death without having obtained previous written consent from a person
specified in section 17 of this chapter. If a personality is deceased, the following apply to the
rights described in this subsection:
(1) The rights apply to the personality whether the personality died before, on, or after July
1, 1994.
(2) If the personality died before July 1, 1994, the rights are considered to have existed on
and after the date the personality died.
(3) Consistent with section 1(a) of this chapter, a claim for a violation of a personality's right
of publicity may not be asserted under this chapter unless the alleged act or event of
violation occurs within Indiana.
(4) A claim for a violation of a personality's right of publicity may not be asserted under this
chapter unless the alleged act or event of violation occurs after June 30, 1994.
(b) A written consent solicited or negotiated by an athlete agent (as defined in IC 25-5.2-1-2)
from a student athlete (as defined in IC 25-5.2-1-2) is void if the athlete agent obtained the
consent as the result of an agency contract that:
(1) was void under IC 25-5.2-2-2 or under the law of the state where the agency contract
was entered into; or
(2) was voided by the student athlete under IC 25-5.2-2-8 or a similar law in the state where
the agency contract was entered into.
As added by P.L.2-2002, SEC.21. Amended by P.L.149-2012, SEC.18; P.L.158-2013, SEC.336.
IC 32-36-1-9 Jurisdictional acts

Sec. 9. A person who:
(1) engages in conduct within Indiana that is prohibited under section 8 of this chapter;
(2) creates or causes to be created within Indiana goods, merchandise, or other materials
prohibited under section 8 of this chapter;
App. 29
(3) transports or causes to be transported into Indiana goods, merchandise, or other materials
created or used in violation of section 8 of this chapter; or
(4) knowingly causes advertising or promotional material created or used in violation of
section 8 of this chapter to be published, distributed, exhibited, or disseminated within
Indiana;
submits to the jurisdiction of Indiana courts.
IC 32-36-1-10 Damages
Sec. 10. A person who violates section 8 of this chapter may be liable for any of the
following:
(1) Damages in the amount of:
(A) one thousand dollars ($1,000); or
(B) actual damages, including profits derived from the unauthorized use;
whichever is greater.
(2) Treble or punitive damages, as the injured party may elect, if the violation under section
8 of this chapter is knowing, willful, or intentional.
IC 32-36-1-11 Profits derived from unauthorized use; proof

Sec. 11. In establishing the amount of the profits under section 10(1)(B) of this chapter:
(1) the plaintiff is required to prove the gross revenue attributable to the unauthorized use;
and
(2) the defendant is required to prove properly deductible expenses.
IC 32-36-1-12 Additional remedies

Sec. 12. In addition to any damages awarded under section 10 of this chapter, the court:
(1) shall award to the prevailing party reasonable attorney's fees, costs, and expenses
relating to an action under this chapter; and
(2) may order temporary or permanent injunctive relief, except as provided by section 13 of
this chapter.
IC 32-36-1-13 Injunctive relief; enforceability against news reporting or entertainment

medium
Sec. 13. Injunctive relief is not enforceable against a news reporting or an entertainment
medium that has:
(1) contracted with a person for the publication or broadcast of an advertisement; and
(2) incorporated the advertisement in tangible form into material that has been prepared for
broadcast or publication.
App. 30
IC 32-36-1-14 Impoundment of materials pending resolution of action

Sec. 14. (a) This section does not apply to a news reporting or an entertainment medium.
(b) During any period that an action under this chapter is pending, a court may order the
impoundment of:
(1) goods, merchandise, or other materials claimed to have been made or used in violation of
section 8 of this chapter; and
(2) plates, molds, matrices, masters, tapes, negatives, or other items from which goods,
merchandise, or other materials described in subdivision (1) may be manufactured or
reproduced.
(c) The court may order impoundment under subsection (b) upon terms that the court
considers reasonable.
IC 32-36-1-15 Destruction or other disposition of offending materials

Sec. 15. (a) This section does not apply to a news reporting or an entertainment medium.
(b) As part of a final judgment or decree, a court may order the destruction or other
reasonable disposition of items described in section 14(b) of this chapter.
IC 32-36-1-16 Property rights

Sec. 16. The rights recognized under this chapter are property rights, freely transferable and
descendible, in whole or in part, by the following:
(1) Contract.
(2) License.
(3) Gift.
(4) Trust.
(5) Testamentary document.
(6) Operation of the laws of intestate succession applicable to the state administering the
estate and property of an intestate deceased personality, regardless of whether the state
recognizes the property rights set forth under this chapter.
IC 32-36-1-17 Exercise and enforcement of rights and remedies

Sec. 17. (a) The written consent required by section 8 of this chapter and the rights and
remedies set forth in this chapter may be exercised and enforced by:
(1) a personality; or
(2) a person to whom the recognized rights of a personality have been transferred under
section 16 of this chapter.
(b) If a transfer of a personality's recognized rights has not occurred under section 16 of this
chapter, a person to whom the personality's recognized rights are transferred under section 18 of
App. 31
this chapter may exercise and enforce the rights under this chapter and seek the remedies
provided in this chapter.
IC 32-36-1-18 Exercise and enforcement of rights and remedies following death of intestate
personality; fractional interests
Sec. 18. (a) Subject to sections 16 and 17 of this chapter, after the death of an intestate
personality, the rights and remedies of this chapter may be exercised and enforced by a person
who possesses a total of not less than one-half (1/2) interest of the personality's recognized
rights.
(b) A person described in subsection (a) shall account to any other person in whom the
personality's recognized rights have vested to the extent that the other person's interest may
appear.
IC 32-36-1-19 Termination of untransferred rights following personality's death

Sec. 19. If:
(1) a deceased personality's recognized rights under this chapter were not transferred by:
(A) contract;
(B) license;
(C) gift;
(D) trust; or
(E) testamentary document; and
(2) there are no surviving persons as described in section 17 of this chapter to whom the
deceased personality's recognized rights pass by intestate succession;
the deceased personality's rights set forth in this chapter terminate.
IC 32-36-1-20 Rights and remedies supplemental to others provided by law

Sec. 20. The rights and remedies provided for in this chapter are supplemental to any other
rights and remedies provided by law.
App. 32

Daniels v. FanDuel (7th Cir.)

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Daniels v. FanDuel (7th Cir.)

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Case: 17-3051 Document: 14 Filed: 11/14/2017 Pages: 93

IN THE UNITED STATES COURT OF APPEALS

AKEEM DANIELS, CAMERON STINGILY, NICHOLAS STONER,

FANDUEL, INC., AND DRAFTKINGS, INC.,

On Appeal from the United States District Court

W. Clifton Holmes Todd L. McLawhorn Stephen B. Caplin

Counsel for Plaintiffs-Appellants and the Proposed Putative Class

Appellate Court No: 17-3051

Short Caption: Daniels, et al. v. FanDuel, Inc., et al.

[ ] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED

(3) If the party or amicus is a corporation:

Attorney's Signature: s/ W. Clifton Holmes Date: 10/19/2017

Address: The Holmes Law Group, Ltd.

Phone Number: 312-721-0779 Fax Number: N/A

E-Mail Address: holmes@theholmeslawgroup.com

counsel / party: address:

Appellate Court No: 17-3051

(3) If the party or amicus is a corporation:

Attorney's Signature: s/ Todd L. McLawhorn Date: October 19, 2017

Address: 17 North State Street, Suite 1600

Phone Number: 312-236-0000 Fax Number: 312-754-9616

E-Mail Address: tmclawhorn@siprut.com

Appellate Court No: 17-3051

Short Caption: Daniels, et al. v. FanDuel, Inc., et al.

[] PLEASE CHECK HERE IF ANY INFORMATION ON THIS FORM IS NEW OR REVISED

(3) If the party or amicus is a corporation:

Attorney's Signature: s/Stephen B. Caplin Date: 10/18/2017

Address: 9245 North Meridian Street, Suite 301 (NEW)

Phone Number: (317) 815-8600 (NEW) Fax Number: N/A

E-Mail Address: sbcaplin@gmail.com

counsel / party: address:

I. JURISDICTIONAL STATEMENT ........................................................................................... 1

II. STATEMENT OF THE ISSUES .............................................................................................. 2

III. STATEMENT OF THE CASE .................................................................................................2

A. Facts Relevant to Issues Raised on Appeal .................................................................... 2

B. Procedural History and Rulings Relevant To This Appeal .......................................... 6

IV. SUMMARY OF THE ARGUMENT .......................................................................................7

V. STANDARD OF REVIEW .......................................................................................................9

2. Plaintiffs plead violations of the statute ............................................................. 11

3. The District Court erred in failing to consider the illegality of

A. Where the speech at issue is integral to criminal conduct, there

1. Indiana Case Law ........................................................................... 16

3. The Plain Language of the Statute ..................................................20

B. Defendants speech and conduct were illegal under Indiana

1. Defendants Conduct Was Illegal................................................... 22

a. Defendants contests involved an element of

Case: 17-3051 Document: 14 Filed: 11/14/2017 Pages: 93

b. Extensive precedent confirms the illegality of

c. The Indiana Gaming Commission confirmed

2. Defendants speech was integral to the illegality of their

CERTIFICATE OF COMPLIANCE .............................................................................................43

Case: 17-3051 Document: 14 Filed: 11/14/2017 Pages: 93

Abdul-Jabbar v. General Motors Corp.,

Ashlin Transp. Services, Inc. v. Indiana Unemployment Ins. Bd.,

Baltimore Orioles v. Major League Baseball Players Ass'n,

Bell Atl. Corp. v. Twombly,

Bolger v. Youngs Drug Prods. Corp.,

Bonte v. U.S. Bank, N.A.,

Clark v. United States,

Davis v. Electronic Arts, Inc.,

Dillinger, LLC v. Electronic Arts Inc.,

Donovan v. Grand Victoria Casino & Resort,

Case: 17-3051 Document: 14 Filed: 11/14/2017 Pages: 93

Giboney v. Empire Storage & Ice Co.,