Checklist · Intellectual Property

Licensing a Likeness or Answering an Unauthorized Use: A Practical Checklist

15 U.S.C. § 1125

Type
Checklist
Jurisdiction
National
Date
2025-11-26
Topic
Intellectual Property

This checklist covers the three operations in publicity practice. Part A licenses a likeness, term by term, with the two clauses people most regret. Part B reviews a model release from either side. Part C negotiates a name, image, and likeness agreement, including the school, tax, and disclosure issues athletes miss. Part D responds to an unauthorized use, from documentation through demand and suit. Part E values the claim. Separate parts cover postmortem planning, digital replica consent, and business-side compliance. A final part lists the mistakes that cost the most.

Licensing a Likeness or Answering an Unauthorized Use: A Practical Checklist

Intellectual Property > Right of Publicity and Name, Image, and Likeness | Published 26 November 2025 - Updated 11 July 2026 | UpLaw - uplaw.us

Part A — Licensing a Likeness

A1. The Grant

  • [ ] Enumerate the attributes: name, likeness, photograph, voice, signature, nickname, biographical information, statistics. Do not rely on "name, image, and likeness" alone.
  • [ ] List the media: print, broadcast, digital, social, packaging, point of sale, out of home.
  • [ ] ⚠️ Negotiate "any media now known or hereafter devised." It may be argued to reach synthetic recreation.
  • [ ] State the territory, recognizing that online distribution makes most grants effectively worldwide.
  • [ ] State the term, with start and end dates.
  • [ ] Address post-term use — sell-off period, archival use, portfolio use, and digital takedown obligations. This is one of the two most regretted clauses.
  • [ ] Define exclusivity narrowly and by example. "Beverages" and "sports drinks" are different grants. This is the other one.
  • [ ] Reserve approval rights over specific images, copy, and placements, with a deemed-approval period.
  • [ ] Address alteration and compositing expressly.
  • [ ] Address sublicensing and assignment, which matters when the brand is acquired.

A2. The Business Terms

  • [ ] Compensation: flat fee, royalty with a precisely defined net sales base, guaranteed minimums, and audit rights.
  • [ ] Payment schedule and late payment consequences.
  • [ ] Deliverables: appearances, hours, posts, travel, wardrobe — specified.
  • [ ] Expenses and who bears them.
  • [ ] Morals clauses, in both directions.
  • [ ] Indemnity and insurance, including additional insured status.
  • [ ] Termination rights and their consequences.
  • [ ] Governing law — which matters enormously given the state-by-state variation.
  • [ ] Disclosure compliance for endorsements, with responsibility allocated.

A3. Before Signing

  • [ ] Check for conflicts with existing exclusivity grants.
  • [ ] Model the foreclosure: what deals does this exclusivity prevent, and for how long?
  • [ ] Confirm any third-party approvals required — team, school, union, agency.
  • [ ] Confirm tax treatment and set aside estimated payments.
  • [ ] Log the deal in a rights record: counterparty, attributes, media, territory, term, exclusivity, expiration.

Part B — Reviewing a Model Release

For either side. The release decides most photograph disputes.

  • [ ] Parties. Whose grant is it, and to whom? A release running to a photographer does not automatically run to the photographer's client.
  • [ ] Materials. Which images — a specific shoot and date, or anything?
  • [ ] Attributes. Likeness only, or also name, voice, and biography?
  • [ ] Media. Enumerated, or "any media now known or hereafter devised"?
  • [ ] Territory.
  • [ ] Term. Stated, or silent — and what does silence mean here?
  • [ ] Product categories and context. Any restriction on subject matter?
  • [ ] ⚠️ Alteration and compositing. May the image be altered, retouched, combined, or used in a way that changes its meaning? This clause now carries synthetic likeness consequences.
  • [ ] Assignability and sublicensing. Does it survive a sale of the business?
  • [ ] Consideration recited and received.
  • [ ] Waiver of inspection and approval — negotiate it out if the subject has a public profile.
  • [ ] Minors. Parent or guardian signature; state requirements; disaffirmance risk at majority.
  • [ ] Governing law.
  • [ ] For a stock image: confirm a release exists, is not "editorial use only," and covers your media, territory, and term.

Part C — An NIL Agreement

C1. Before Negotiating

  • [ ] Read the state NIL statute — disclosure, agent registration, permissible categories.
  • [ ] Read the institutional policy and the conference rules.
  • [ ] Confirm prohibited categories under the statute, policy, and any team sponsorship conflict.
  • [ ] Confirm agent registration where required, and player association rules if professional aspirations exist.
  • [ ] International students: obtain individual advice — compensated activity intersects with visa status limits.
  • [ ] High school athletes: confirm the state association's position on eligibility.

C2. The Terms

  • [ ] Scope of rights, media, territory, term.
  • [ ] ⚠️ Exclusivity — narrow the category, shorten the term, and remove automatic renewal. The most common and most costly athlete mistake.
  • [ ] Deliverables, with specific counts and formats.
  • [ ] Approval rights over content using the athlete's likeness.
  • [ ] Compensation, schedule, and any contingency on performance, eligibility, or roster status.
  • [ ] ⚠️ No use of school marks — the athlete cannot license them; institutional permission is separate.
  • [ ] Morals and conduct clauses, both directions.
  • [ ] Termination on transfer, injury, or loss of eligibility.
  • [ ] Post-term use of content created during the term.
  • [ ] Disclosure obligations to the institution, with the deadline.
  • [ ] Disclosure of the material connection in every endorsement post.

C3. After Signing

  • [ ] File the institutional disclosure on time.
  • [ ] Set aside taxes from the first payment — this is self-employment income.
  • [ ] Keep records of income and deductible expenses.
  • [ ] Calendar the term expiration and any renewal notice date.
  • [ ] Log the exclusivity so the next deal is screened against it.

Part D — Responding to an Unauthorized Use

D1. Preserve, Before Contacting Anyone

  • [ ] Dated screenshots with full URLs.
  • [ ] The complete advertisement or content, in context.
  • [ ] Evidence of distribution and reach: placements, run dates, circulation, impressions.
  • [ ] Archive captures where available.
  • [ ] The product or packaging, purchased if necessary.
  • [ ] ⚠️ Unauthorized uses disappear once the user is contacted. Preserve first.

D2. Analyze

D3. Identify the Defendant

  • [ ] The advertiser — usually the right target.
  • [ ] The agency that created the campaign.
  • [ ] The photographer, if the image was licensed without a release.
  • [ ] The retailer or distributor, for merchandise.
  • [ ] ⚠️ Platform immunity generally forecloses claims against interactive services for user content.

D4. Demand

  • [ ] Value the license first (Part E). It anchors everything.
  • [ ] Letter identifying: the use, the rights asserted, the absence of consent, and the remedy sought.
  • [ ] Demand immediate takedown of digital assets and cessation of print and broadcast placements.
  • [ ] Demand a license fee for the period of use.
  • [ ] Request an accounting of the use — media, dates, reach.
  • [ ] Set a response deadline.
  • [ ] Preserve the ability to escalate without threatening what you will not do.

D5. If It Does Not Resolve

  • [ ] Platform takedown where a mechanism exists, recognizing publicity is not copyright.
  • [ ] Suit, pleading the state claim and, where endorsement is implied, the federal claim.
  • [ ] Plead willfulness where a prior refusal or prior demand exists.
  • [ ] Seek a preliminary injunction where the campaign is running.
  • [ ] Discovery priorities: the release file; the rights log and asset provenance; the media plan; internal clearance communications; and comparable rates the defendant paid others.

Part E — Valuing the Claim

  • [ ] Reasonable license value — the primary measure.
    • [ ] The subject's actual prior licenses — the best evidence.
    • [ ] Comparable licenses by similarly situated individuals in the category.
    • [ ] What the defendant paid others for equivalent placements.
    • [ ] Agency rate cards.
    • [ ] The actual scope: media, duration, territory, reach, prominence.
  • [ ] Defendant's profits attributable to the use, where permitted, with apportionment expected.
  • [ ] Statutory damages where the state provides them.
  • [ ] Punitive damages for willfulness.
  • [ ] Dignitary damages in privacy-branch states, which matter most where license value is nominal.
  • [ ] Attorney's fees under a state statute or, in exceptional cases, 15 U.S.C. § 1117.
  • [ ] Injunctive relief, often the primary objective.

⭐ Establish license value in week one. It sets the demand, frames discovery, and tells the client whether the matter is worth pursuing.

Part F — Postmortem Planning

  • [ ] Determine the domicile whose law will govern — it decides whether the right exists at all.
  • [ ] Confirm the statutory term and whether registration is required to preserve it.
  • [ ] File the registration if required.
  • [ ] Address publicity rights expressly in the will or trust — do not rely on a residuary clause.
  • [ ] Name a manager with authority to license, enforce, and decline uses.
  • [ ] Set standards for permitted and prohibited uses.
  • [ ] Consider a trust to hold and administer the rights across generations.
  • [ ] Value the asset for estate tax purposes, and expect the valuation to be contested.
  • [ ] ⭐ Consider trademark registration under 15 U.S.C. § 1051, enforceable under 15 U.S.C. § 1114 — a renewable asset that can outlast any publicity term.
  • [ ] Inventory existing licenses so the estate knows what is already granted and for how long.

Part G — Digital Replica Consent

  • [ ] ⚠️ Never rely on a general grant of rights. Consent to a digital replica should be separate, specific, and separately compensated.
  • [ ] Specify whether a replica may be created at all.
  • [ ] Specify for which productions or campaigns.
  • [ ] Specify per-use consent or a defined scope.
  • [ ] Specify the term, and whether the rights survive it.
  • [ ] Specify what happens after death.
  • [ ] Specify compensation for each use.
  • [ ] Specify approval rights over the output.
  • [ ] Prohibit uses that would place false statements in the person's mouth.
  • [ ] Address deletion of the underlying model or data on termination.
  • [ ] Review every older agreement for a broad grant — particularly "any media now known or hereafter devised" and broad alteration clauses — capable of being read to permit synthetic recreation.

Part H — Business Compliance

  • [ ] Two permissions for every asset: copyright in the image, and identity of every recognizable person.
  • [ ] Verify stock releases cover your media, territory, and term, and are not "editorial use only."
  • [ ] Maintain a rights log: source, license terms, release terms, expiration, approved uses.
  • [ ] Diary every expiration and pull the asset on the date.
  • [ ] Obtain express permission for user-generated content — a hashtag is not a license.
  • [ ] Employee images: obtain a release at onboarding with an express post-employment provision; remove promptly on departure otherwise.
  • [ ] Do not rely on disclaimers.
  • [ ] Respond to demands promptly: take down, scope the use, value the license, resolve.
  • [ ] Separate written consent for any synthetic likeness.
  • [ ] Train marketing on the two-permissions rule; the failures are procedural, not intentional.

Part I — The Costliest Mistakes

  • [ ] Obtaining the copyright license and not the release.
  • [ ] Granting category-wide exclusivity for a long term for a modest payment.
  • [ ] Ignoring post-term use, so an expired deal keeps running.
  • [ ] Signing "any media now known or hereafter devised" without a carve-out.
  • [ ] Granting broad alteration rights that may reach synthetic recreation.
  • [ ] Failing to diary release expirations.
  • [ ] Reposting user content without express permission.
  • [ ] Using employee photographs after departure with no post-employment provision.
  • [ ] Contacting the user before preserving the evidence.
  • [ ] Failing to establish license value before making a demand.
  • [ ] Assuming a postmortem right exists without checking the domicile.
  • [ ] Relying on a general grant for a digital replica.

Part J — Model Demand Letter

[Date] · [Advertiser], attn: [General Counsel / Marketing Director] Re: Unauthorized commercial use of the name and likeness of [Name]

Dear [Name]:

This firm represents [Client]. It has come to our attention that [Company] has used [Client]'s [photograph / name / likeness / voice] in [describe the advertisement or product], appearing in [media], from at least [date] to the present. Copies are enclosed at Tabs 1–[N].

[Client] did not consent to this use. No license was sought or granted, and no release covers it.

The rights at issue. This use violates [Client]'s right of publicity under the law of [state]. Because the use conveys that [Client] endorses or is associated with [Company]'s [product], it additionally constitutes false endorsement under 15 U.S.C. § 1125, for which injunctive relief is available under 15 U.S.C. § 1116 and attorney's fees in exceptional cases under 15 U.S.C. § 1117.

[If applicable:] Any license [Company] obtained from the photographer conveys rights under 17 U.S.C. § 106 and 17 U.S.C. § 201 in the photograph only. It conveys no right to use [Client]'s identity commercially.

Demand. We request that [Company]: (1) immediately cease all use and remove all digital assets; (2) confirm in writing the date all print, broadcast, and out-of-home placements will end; (3) provide an accounting of the use, including media, run dates, territories, impressions, and expenditures; and (4) remit $[amount], representing the reasonable license value of the use.

Preservation. [Company] should preserve all documents relating to the acquisition, clearance, and use of the materials, including communications with any agency, photographer, or stock provider.

Please respond by [date]. [Client] would prefer to resolve this promptly and without litigation.

Respectfully, [Name, contact]

Notes. Value the license before sending. Do not threaten what you will not do. Ask for the accounting — it is the fastest route to a defensible number.

Part K — Deadline and Diary Sheet

Item Date Source
Date of first known unauthorized use Evidence
Limitations period expiration (single-publication rule) State law
Demand letter sent / response due
Current license terms — expiration Agreement
Exclusivity grant — expiration and renewal notice date Agreement
Post-term sell-off period end Agreement
Model release term expiration Release
NIL institutional disclosure deadline Policy
Estimated tax payment dates Tax calendar
Trademark filing / renewal dates 15 U.S.C. § 1051
Postmortem registration deadline, if required State statute

Part L — The Rights Log

Maintain one row per grant. For an individual and for a business alike, this single artifact prevents most disputes.

Counterparty Attributes granted Media Territory Term start Term end Exclusive? Category Post-term rights Approval rights Compensation Notes

For a business, add: asset source; copyright license and terms; release on file (Y/N) and its terms; release expiration; approved uses; and the person accountable for pulling the asset on expiration.

⭐ Nearly every dispute in this field is a scope question about a document somebody signed and nobody kept. The log is the answer.

Part M — Defending an Unauthorized Use Claim

The same framework, run from the other side. Work these in order.

  • [ ] Find the release or license first. Most claims resolve on a document. Search the shoot file, the agency file, the stock provider's records, and any prior campaign that used the same asset.
  • [ ] Test the scope of anything found: parties, materials, attributes, media, territory, term, categories, alteration, assignability.
  • [ ] Determine which state's law applies, and whether that state recognizes the right and in which branch.
  • [ ] Assess the character of the use. Editorial, expressive, or advertising? Advertising for an expressive work is treated differently from merchandise bearing a likeness.
  • [ ] Assess transformative use, applying the purpose-and-character inquiry from 17 U.S.C. § 107 and Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569.
  • [ ] Assess whether the use implies endorsement. If not, the federal claim under 15 U.S.C. § 1125 may fail even if the state claim does not.
  • [ ] Assess copyright preemption under 17 U.S.C. § 301 — is this in substance a claim about reproducing a work within 17 U.S.C. § 102?
  • [ ] Assess incidental use — fleeting, background, no commercial emphasis.
  • [ ] Check the limitations period and the single-publication rule.
  • [ ] Consider whether the plaintiff can prove license value. If they have never licensed their likeness, damages may be modest, which changes the settlement posture.
  • [ ] Consider indemnity. The agency, photographer, or stock provider may owe a defense; give notice promptly and in the form the contract requires.
  • [ ] Take the asset down while evaluating. It costs little, mitigates damages, and removes the injunction argument.
  • [ ] ⚠️ Do not destroy the clearance file. Internal communications showing the issue was raised and overridden are damaging; destroying them is worse.
  • [ ] Value the license honestly and resolve. In this field the license fee was almost always the cheaper number.

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