IN Supreme Court

June 14, 2024

Who Decides? A Critical Examination of Arbitrability in Right of Publicity Cases

The court’s recent opinion by Justice Massa in Illinois Casualty Company (ICC) v. Thirty-Three Models addresses the key question of “Who decides?” in the context of arbitrability, focusing on whether disputes should be resolved by arbitration or through the courts based on the parties’ agreements. This case exemplifies an intellectual property law dispute centered on the right of publicity, which protects an individual’s identity from unauthorized commercial exploitation. The right of publicity grants individuals exclusive authority to license their own identity for commercial purposes, safeguarding their name, likeness, and other recognizable aspects from being used without permission for profit. By addressing the misuse of a person’s identity for commercial gain, this case shows the importance of upholding intellectual property rights to ensure individuals retain control over how their identity is used in the marketplace.

The main issue explored in this opinon is who has the authority to decide if a dispute must be resolved through arbitration. The court considered two primary questions:

Does incorporating American Arbitration Association (AAA) rules indicate a clear intent to delegate arbitrability to an arbitrator.

March 23, 2020

Indiana Supreme Court Holds Liquidated Damage Provisions are Unenforceable Penalties

By Overhauser Law Offices, LLC

The Indiana Supreme Court affirmed the trial court on both issues on appeal in the case of American Consulting, Inc. d/b/a American Structurepoint, Inc. (“American”) versus Hannum Wagle & Cline Engineering, Inc., d/b/a HWC Engineering, Inc. (“HWC”), Marlin A. Knowles, Jr., Jonathan A. Day, David Lancet, and Tom Mobley, originally filed in the Marion County Superior Court.

Knowles, Day, Lancet, and Mobley were all previous employees of American. Mobley was granted summary judgment in his favor in the trial court so claims against him were not discussed on appeal. Each of the employees signed contracts precluding them from hiring or employing other American employees. These contracts each had clauses for liquidated damages upon breach set at 50% of the employee’s pay during the twelve months prior to the breach for Knowles and 100% of the employee’s pay during the twelve months prior to the breach for Day and Lancet.

November 21, 2018

Indiana Supreme Court issues Opinion in Daniels vs. FanDuel, Inc. Right of Publicity Case

By Overhauser Law Offices, LLC

In the Opinion written by Justice David, the Indiana Supreme Court concluded Indiana’s right of publicity statute contains an exception for material of newsworthy value that includes online fantasy sports operators’ use of college players’ likenesses for contests.

The matter of Akeem Daniels, Cameron Stingily, and Nicholas Stoner vs. DraftKings, Inc. and FanDuel, Inc. was initiated as a class action complaint in Marion County alleging that the Defendants were promoting and operating their online fantasy sports contests using the Plaintiff’s names and likenesses without their consent and thus violated their right of publicity under Indiana law. The Defendants removed the case to the U.S. District Court for the Southern District of Indiana and moved to dismiss. The District Court dismissed the case and the Plaintiffs appealed to the United States Court of Appeals for the Seventh Circuit, which certified a question of Indiana law to the Indiana Supreme Court.

The certified question from the Seventh Circuit Court of Appeals asked, “[w]hether online fantasy-sports operators that condition entry on payment, and distribute cash prizes, need the consent of players whose names, pictures, and statistics are used in the contests, in advertising the contests, or both.” All the Plaintiffs were collegiate student-athletes at different times from 2014-2016. Their statistics, names, and images were used by Defendants in their fantasy sports competitions to allow consumers to build their ideal fantasy team within a capped salary based on artificial prices for each player. The player’s performance translated to a point value determined by Defendants and consumers accumulated these points to become eligible to win cash prizes.