Guide · Intellectual Property
The Right of Publicity and NIL: A Comprehensive Guide
- Type
- Guide
- Jurisdiction
- National
- Date
- 2023-11-13
- Topic
- Intellectual Property
The right of publicity protects a person's interest in the commercial value of their identity — name, image, likeness, voice, and the other signals that call a particular human being to mind — and this UpLaw guide maps the whole regime from its origins to its AI-era frontier. It traces the doctrine's migration from Warren and Brandeis's privacy tort to the transferable property right Judge Frank named in Haelan, then charts the state-by-state patchwork of statutes and common law that governs today, since there is still no federal right of publicity. It sets out the elements of a claim, the identity-evocation cases that reach far beyond name and face (Midler, Waits, White, Carson), and the central line between commercial and expressive use — including the three competing First Amendment tests (transformative use, Rogers v. Grimaldi, and predominant purpose), the newsworthiness privilege, and the narrow Zacchini exception. It works through the athlete video-game cases, copyright preemption under Section 301, the Lanham Act false-endorsement overlap, post-mortem descendibility and the domicile trap that cost the Marilyn Monroe estate its rights, and the licensing and clearance practice that keeps advertisers out of court. It closes on the two live frontiers: college athlete NIL after O'Bannon, Alston, and the House settlement, and the AI deepfake and voice-cloning problem now driving the ELVIS Act, California's digital-replica statutes, and the proposed federal NO FAKES Act. A running hypothetical about a fabricated ad campaign built on a cloned athlete and a cloned musician grounds every doctrine.
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