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.

The Right of Publicity and NIL: A Comprehensive Guide

Intellectual Property > Right of Publicity | Published 13 November 2023 - Updated 1 June 2025 | UpLaw - uplaw.us

Every person owns a signal — a face, a name, a voice, a walk — that calls them and only them to mind. The right of publicity is the law that decides who may sell that signal, who may borrow it, and who must simply be allowed to speak about it. It is state law, it is inconsistent, it is now colliding head-on with machines that can synthesize any identity on demand, and it is one of the most commercially consequential bodies of law in America.

Keywords: right of publicity, name image and likeness, NIL, Haelan, Zacchini, Midler, White v. Samsung, transformative use, Rogers v. Grimaldi, predominant use, false endorsement, copyright preemption, post-mortem rights, ELVIS Act, digital replicas, NCAA NIL

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