MLB Players Inc. v. DraftKings, bet365 Memorandum ruling can serve as a guide in sports betting and fantasy sports disputes

In a recent meeting of my Right of Publicity class, we covered fantasy sports disputes ranging from Tom Brady’s suit against Yahoo in 2006 to Indiana’s Supreme Court holding in Daniels v. FanDuel, Inc., 109 N.E.3d 390 (Ind. 2018). On March 14, 2025, a related Memorandum ruling issued in Memorandum ruling in MLB Players Inc. v. DraftKings, bet365 (case # 2:2024cv04884) (U.S. District Court for the Eastern District of Pennsylvania) denying DraftKings and bet365’s motion to dismiss. (For more commentary and references to similar disputes, see also MLBPA suit against DraftKings coverage). Once again, the essential role served by the Right of Publicity was confirmed, this time in the context of the evolution of the multi-billion-dollar industries of fantasy sports and sports betting.

The MLB Players Inc. v. DraftKings ruling provides a summation of the dispute and issues to be determined. Major League Baseball players grant authority to the MLB division MLB Players, Inc. to serve as the group licensing agent for the players in relation to commercial activity involving the group licensing rights of MLB players. According to the ruling, DraftKings and bet 365 use a headshot next to the name of each player, provide an individual page for each player in its app, and feature the players in social media posts which function as advertisements encouraging placement of bets on the player.

In a move reminiscent of the invention of advertisements incorporating some degree of editorial content and then being referred to as an “advertorial,” Draftkings and bet365 would make a multi-slide social media post with a brief query like “Is Paul Skenes on the most dominant stretch in sports history?” Then, in the same post, is a slide encouraging viewers to place a bet on DraftKings’ or bet365’s platform.

The Memorandum looks at distinctions between right of privacy and the Right of Publicity, and common law compared to statutory publicity rights, and officially adopts the Restatement Third of Unfair Competition §46. The Court also determines that the players indeed assigned the authority (and therefore standing) to MLB Players, Inc. to assert the claims on their behalf.

Another case cited in the Memorandum is C.B.C. Dist. & Mktg., Inc. v. Major League Baseball Adv. Media, 505 F.3d 818 (8th Cir. 2007), which was also covered in that recent Right of Publicity class. One of the unsettling aspects of C.B.C. is the determination that “unlike cases where was an appropriation of likeness to create the impression that a famous person endorses a product, CBC’s use of players’ names in no way creates an impression that players endorse CBC’s fantasy games.”

So…several things. Name is specifically enumerated in almost every Right of Publicity statute. Based on the evolution of fantasy sports platforms, likeness now is a ubiquitous component in such offerings. Does C.B.C. suggest that selling tee shirts using “only” the name and stats of a MLB player is not an infringement? More importantly, Right of Publicity analysis does not require falsity. There does not need to be a false endorsement for a viable Right of Publicity claim (a common analytical slip which also shows up in Daniels v. FanDuel). Lastly, C.B.C. says the use of the players’ names and stats does not go to the heart of players’ ability to earn living which is as baseball players and not by publication of their playing records. Does this suggest that any new invention that makes novel use of a Right of Publicity can be sheltered from liability since it isn’t the way a player earns a living?

Back to MLB Players Inc. v. DraftKings, Defendants argued that MLBPI failed to allege that the Right of Publicity (NIL) of the professional baseball players has value (despite the Defendants’ platforms being populated by the very rights and value it is questioning). DraftKings and bet365 also allege they did not use the players’ Right of Publicity for a commercial or advertising purpose. The Court makes short work of these assertions. With a nod to Indiana’s Right of Publicity statute, the Court dispenses of Defendants’ public interest and newsworthiness defenses. The Court considers the Daniels v. FanDuel ruling in which newsworthiness was a factor, yet has no difficulty determining that it will not read a newsworthiness exception into Pennsylvania’s common law or statutory Right of Publicity at this juncture. Similarly, the Court refuses to rule that Defendants’ social media posts constitute “news reports” and rejects Defendants’ contention that “odds are news.”

The Court is “unwilling to categorically hold as much at the pleadings stage of this litigation.”

There is a lot at stake in these cases. The Right of Publicity provides a primary means of recourse in response to infringing activities, and rulings like the Memorandum in MLB Players Inc. v. DraftKings, albeit an interim one, can guide the way for application of the Right of Publicity.

Recent AI and deep-fake activity

Not that it needs to be demonstrated, but recent AI and deep-fake developments further demonstrate the need for meaningful Right of Publicity recognition.

AI-generated a “new” song presented as Drake and the Weeknd. Read more on this link: AI Drake the Weeknd song

Deep-fake technology is taking centerstage in a recently filed suit in California. Read more on this link: Kyland Young et. al. v. Neocortext Inc.

US Supreme Court to consider Andy Warhol’s Prince Series in relation to copyright fair use and transformative test

You can find information concerning the dispute between the Andy Warhol Foundation (AWF) and photographer Lynn Goldsmith elsewhere, such as the factual underpinnings, lower court rulings on the case to date, and the arguments on either side easily enough in other place. Given the recent acceptance of a writ of certiorari by the United States Supreme Court (SCOTUS), I will simply note a few details that could be interesting to watch from a Right of Publicity perspective.

First, it is interesting to consider that in Comedy III, the court specifically cited Warhol’s Marilyn as the example of a transformative work, in crafting and applying its transformative use test to the Right of Publicity. Often lost in discussion of the case and reference thereto, the rightsowners of the Three Stooges (Comedy III) won the case on Right of Publicity grounds in relation to the commercial activities that had occurred in relation to a charcoal sketch of the Three Stooges by the defendant. The original work of art itself was not really the issue, but rather, the activities connected to that work were found to constitute a Right of Publicity violation. The Judge carefully articulated a test for deciding such situations, thus advancing the transformative use test for Right of Publicity purposes.

In the Warhol dispute concerning Lynn Goldsmith’s Prince photograph, the issue is of a copyright nature. Still, it is interesting that in a notable prior case (Comedy III), Warhol’s Marilyn was cited as the example of a transformative use. Now, in the AWF / Goldsmith matter the very question of whether Warhol’s rendering of Prince is transformative takes center stage.

Second, in teaching Comedy III this semester after news of SCOTUS accepting AWF’s petition, a question was raised whether Warhol perhaps used a reference photo in creating his Marilyn work. The inquiry is intriguing, though perhaps only for academic reasons. Without knowing the specifics, it seems plausible that if Warhol used a reference work for creation of his Prince work, it is possible he did the same for creation of his Marilyn work. The implications, if so, can be considered elsewhere.

Third, it is important to note that the AWF Goldsmith matter to be decided by SCOTUS, with a decision expected sometime in 2023, ought to be confined to a copyright decision. Any Right of Publicity involved would be that of Prince, and it is assumed that the rightsowners of Prince’s publicity rights are not part of the matter. SCOTUS is good at keeping the issues it is considering confined to only that which is in front of the Court at that time. In other words, no matter what SCOTUS decides in the AWF Goldsmith matter, it is expected to be a copyright decision only.

Last, and despite the observation in the preceding paragraph, certain Right of Publicity tests and analytical constructs often borrow from the copyright realm. If the transformative use test happens to be recast or adjusted by SCOTUS, it would not be surprising to see future holdings considering the Right of Publicity in relation to a Comedy III-type transformative use test take into account what the Supreme Court finds in the Warhol Goldsmith matter concerning Warhol’s Prince series.

Former Bears player Brian Urlacher files lawsuit against Florida hair clinic

If the report on this link is accurate, that a Florida hair clinic used Brian Urlacher without permission to promote their services, this sounds like a clean-cut case of Right of Publicity infringement.  Urlacher reportedly had an endorsement deal with a Florida clinic whose services Urlacher did in fact use, which will likely enhance his position in the damages portion of the lawsuit.  Here’s a link with a bit more information:  Brian Urlacher sues Florida hair clinic