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9 Duke L. & Tech. Rev. [1] (2009)

handle is hein.journals/dltr9 and id is 1 raw text is: 

                   PUBLICITY STATUTE

                           RISA J. WEAVER


        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.


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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