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9 Duke L. & Tech. Rev. [1] (2010-2011)

handle is hein.journals/dltr9 and id is 1 raw text is: ONLINE FANTASY SPORTS LITIGATION AND THE NEED FOR A FEDERAL RIGHT OF PUBLICITY STATUTE RISA J. WEAVER ABSTRACT The right of publicity is currently a jumble of state common law and state statutes, but the online fantasy sports industry crosses state lines with ease. Having witnessed the great revenue potential of online fantasy sports, professional sports leagues are trying to strong-arm independent fantasy sports providers out of the business by using the right of publicity to assert property interests in the statistics generated by professional players, and used by fantasy sports providers to run their online games. The first such attempt-by Major League Baseball-failed. However, the state law nature of the right of publicity prevents any single court opinion from binding the industry or other jurisdictions. The National Football League is attempting to achieve a more favorable result in a different jurisdiction. If successful, other professional sports leagues will be encouraged to litigate the issue, and Major League Baseball might even attempt to re-litigate its position in other states. This free-for-all could result in different rules for different sports in different states, which would not only be untenable for the online fantasy sports providers, but a violation of the Constitution as well. A cohesive federal right of publicity statute would (1) bring uniformity to the doctrine, (2) give federal courts (where these actions are being brought) a federal law to apply instead of allowing them to continue muddying the application of state laws, (3) directly address First Amendment concerns, and (4) solve the dormant commerce clause violation alluded to above. INTRODUCTION 11 Fantasy sports as we know them today have their roots in Rotisserie League Baseball, which was founded in 1980 by Daniel Okrent.2 What 1 J.D. candidate 2010, Duke University School of Law; B.A. History 1995, Case Western Reserve University. I would like to thank Professor David Lange for his insightful comments and friendship and Rhead Enion for his never-ending support and valuable editorial input. 2 Gary P. Quiming, Comment, Playing by the Rules of Intellectual Property: Fantasy Baseball's Fight to Use Major League Baseball Players' Names and

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