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Fantasy sports—games that allow fans to select their ideal roster from any team in the league and compete based on their players’ real-world performance—have become a big business. By one count, 27 million American adults participated in some form of fantasy sports in 2009. The industry’s rise has led to litigation over the right of athletes to stop companies from exploiting their images, biographical data, and statistics without permission. A majority of states recognize, by common law or statute or both, a “right of publicity” that provides a tort action against a defendant who appropriates the plaintiff’s name or likeness for economic advantage without consent. Those rights arguably collide with the First Amendment rights of game developers and consumers.

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