Toolkit · Intellectual Property

The NIL Deal and Right of Publicity Toolkit

15 U.S.C. § 1125

Type
Toolkit
Jurisdiction
National
Date
2025-06-25
Topic
Intellectual Property

This toolkit supplies the documents publicity practice runs on. It opens with the rights log and the exclusivity worksheet — the two artifacts that prevent most disputes on the licensor side. It provides a likeness license term sheet, an annotated model release, and a digital replica consent addendum drafted to be separate from any general grant. It includes a campaign clearance checklist enforcing the two-permissions rule, a license valuation worksheet, a demand letter, and a takedown request. For athletes it provides an NIL deal review sheet covering the school, tax, and disclosure issues. For estates it provides a postmortem planning worksheet. Each tool names the failure it prevents.

The NIL Deal and Right of Publicity Toolkit

Intellectual Property > Right of Publicity and Name, Image, and Likeness | Published 25 June 2025 - Updated 21 June 2026 | UpLaw - uplaw.us

How to Use This

Two artifacts prevent most disputes: Tool 1, the rights log, and Tool 2, the exclusivity worksheet. Tool 6, the campaign clearance checklist, prevents the single most common failure on the user side — obtaining the copyright license and forgetting the release.

Framework: state right of publicity, with the federal overlay at 15 U.S.C. § 1125, remedies at 15 U.S.C. § 1116 and 15 U.S.C. § 1117, and the copyright boundary at 17 U.S.C. § 301.

Tool 1 — Rights Log

One row per grant. Maintain it from the first deal.

# Counterparty Attributes granted Media Territory Start End Exclusive? Category Post-term rights Approval rights Compensation Notes

Review rules.

  • [ ] Before signing anything new, screen it against every open exclusivity row.
  • [ ] Diary each End date, and each renewal-notice date, ninety days out.
  • [ ] Note whether post-term rights permit archival, portfolio, or sell-off use — and for how long.
  • [ ] Flag any row granting "any media now known or hereafter devised."
  • [ ] Flag any row granting broad alteration or compositing rights.

Why it exists. Nearly every dispute in this field is a scope question about a document somebody signed and nobody kept.

Tool 2 — Exclusivity Worksheet

Complete before granting any exclusivity. This is the term most regretted and least examined.

Question Answer
What category is being granted?
Is the category defined by example, or by a broad label?
What products are inside it? List them.
What adjacent products are arguably inside it?
What deals would this foreclose over the term?
What is the term, and is renewal automatic?
Is renewal conditioned on a minimum payment?
Is exclusivity limited by media or territory, or total?
Is compensation commensurate with the foreclosure?
Are carve-outs available for categories I expect to pursue?

Drafting guidance. Define the category narrowly and by example — "isotonic sports beverages sold in retail, specifically excluding coffee, tea, water, energy drinks, and supplements" rather than "beverages." Shorten the term. Remove automatic renewal or condition it on a payment step-up. Reserve carve-outs in writing.

⚠️ A first deal granting category-wide exclusivity for a long term with automatic renewal, for a modest payment, is the most expensive document most people in this field ever sign.

Tool 3 — Likeness License Term Sheet

LIKENESS LICENSE — TERM SHEET

1. Licensor / Licensee. [Names and entities.]

2. Attributes licensed. ☐ Name ☐ Likeness ☐ Photograph ☐ Voice ☐ Signature ☐ Nickname ☐ Biographical information ☐ Statistics. (Enumerate; do not rely on "name, image, and likeness" alone.)

3. Media. ☐ Print ☐ Broadcast ☐ Digital ☐ Social ☐ Packaging ☐ Point of sale ☐ Out of home ☐ Other: [ ]. ⚠️ "Any media now known or hereafter devised" — accepted / carved out for synthetic and digital replica uses.

4. Territory. [ ] (Note that online distribution effectively globalizes most grants.)

5. Term. [Start] to [end].

6. Post-term. Sell-off period: [ ] days. Archival use: [permitted / prohibited]. Portfolio use: [ ]. Digital takedown within [ ] days of expiration.

7. Exclusivity. ☐ None ☐ Category: [defined narrowly, by example] ☐ Territory-limited ☐ Media-limited. Renewal: [ ].

8. Approval rights. Licensor approves ☐ images ☐ copy ☐ placements. Deemed approved if not rejected within [ ] business days.

9. Alteration. Retouching, cropping, compositing: [permitted / prohibited / with approval]. Synthetic recreation: see the separate addendum (Tool 5).

10. Deliverables. [Appearances, hours, posts, travel, wardrobe — specified.]

11. Compensation. Flat fee $[ ]; royalty [ ]% of Net Sales, defined as [ ]; guaranteed minimum $[ ]; payment schedule [ ]; audit rights [ ].

12. Disclosure. Licensor will disclose the material connection in all endorsement content; Licensee will not request otherwise.

13. Morals. Mutual. Termination on [defined conduct] by either party.

14. Assignment / sublicensing. [Permitted with consent / prohibited.]

15. Indemnity and insurance. [Scope; additional insured status.]

16. Governing law. [State] — material, given the state-by-state variation.

Tool 4 — Annotated Model Release

RELEASE

1. Grant. I, [Name], grant to [Entity] (name the entity that will use the images, not only the photographer) the right to use the photographs described below.

2. Materials. Photographs taken [date] at [location] by [photographer]. (Narrow. A release covering "any photographs of me" is a very different document.)

3. Attributes. ☐ Likeness ☐ Name ☐ Voice ☐ Biographical information. (Enumerate.)

4. Media. [List]. (⚠️ If "any media now known or hereafter devised" appears, the subject should insist on a carve-out for synthetic and digital replica uses.)

5. Territory. [ ].

6. Term. [Start] to [end]. (⚠️ Silence here is the most litigated ambiguity in releases. State it.)

7. Permitted uses. [Product categories; any context restrictions.]

8. Alteration. The images ☐ may ☐ may not be cropped, retouched, altered, or combined with other elements. (⚠️ This clause now carries synthetic likeness consequences.)

9. Assignment. This release ☐ is ☐ is not assignable. (Matters when the business is sold.)

10. Approval. I ☐ waive ☐ retain the right to inspect and approve the finished materials.

11. Consideration. $[ ], receipt acknowledged.

12. Minor. Signed by parent or guardian [name]. (Check state requirements; note disaffirmance risk at majority.)

13. Governing law. [State].

Signed: __________ Date: __________

For the user, verify: the entity named is yours; the media, territory, and term cover your campaign; the categories cover your product; and, for stock images, that a release exists at all and is not "editorial use only."

Tool 5 — Digital Replica Consent Addendum

⚠️ Separate document. Separately negotiated. Separately compensated. Never folded into a general grant of rights.

DIGITAL REPLICA ADDENDUM

1. Definition. "Digital Replica" means any computer-generated, synthesized, or algorithmically produced representation of [Name]'s voice, likeness, image, or performance that is readily identifiable as [Name], whether or not derived from materials created under the Agreement.

2. No implied consent. Nothing in the Agreement, including any grant of rights in "any media now known or hereafter devised" or any right to alter or composite materials, constitutes consent to create or use a Digital Replica. Such consent is granted only by this Addendum.

3. Creation. [Company] ☐ may ☐ may not create a Digital Replica. If permitted: only from materials created during [defined sessions], only for [defined productions or campaigns].

4. Use. Each use requires ☐ per-use written consent ☐ consent within the scope defined at Exhibit A. Prohibited uses include: political content; content attributing statements not approved by [Name]; sexual content; content endorsing products outside [categories]; and any content that would reasonably be understood as [Name] making a factual assertion.

5. Approval. [Name] shall have the right to review and approve each output before use, within [ ] business days.

6. Compensation. $[ ] for creation, and $[ ] per use, or as set at Exhibit A. Compensation under the Agreement does not include Digital Replica use.

7. Term and survival. Rights under this Addendum expire on [date] and ☐ do ☐ do not survive the Agreement. After [Name]'s death, rights ☐ terminate ☐ pass to [Name]'s estate on the terms at Exhibit B.

8. Deletion. On termination, [Company] shall delete the Digital Replica and all underlying models, training data, and derived assets, and certify deletion in writing within [ ] days.

9. No sublicense or transfer without [Name]'s prior written consent.

10. Remedies. Breach constitutes irreparable harm; injunctive relief is available without bond, in addition to damages.

Also do this: review every existing agreement for a broad grant capable of being read to permit synthetic recreation — particularly "hereafter devised" media clauses and unrestricted alteration rights.

Tool 6 — Campaign Clearance Checklist

The two-permissions rule, operationalized. This one page prevents the most common failure in the field.

For every asset in the campaign:

  • [ ] Permission 1 — copyright. Who owns it under 17 U.S.C. § 201? Is there a license, and does it cover this media, territory, and term? Exclusive rights are defined at 17 U.S.C. § 106.
  • [ ] Permission 2 — identity. Is every person recognizable? Is there a release for each, and does it cover this media, territory, term, and product category?
  • [ ] Stock images: does the license include a model release? Is it "editorial use only"? Does it cover commercial use in this category?
  • [ ] User-generated content: express written permission obtained for both copyright and likeness. A hashtag is not a license.
  • [ ] Employee images: release on file with an express post-employment provision.
  • [ ] Customer testimonials: release covering this media and term, with the term diaried.
  • [ ] Third-party marks and products visible in the frame: cleared or removed.
  • [ ] Any implication of endorsement by a person not under contract: removed, or a claim under 15 U.S.C. § 1125 is invited.
  • [ ] Disclosure of material connections in any endorsement content, by both parties.
  • [ ] Any synthetic or AI-generated element depicting a real person: separate written consent obtained (Tool 5).
  • [ ] Rights log updated with source, license terms, release terms, expiration, and approved uses.
  • [ ] Expiration diaried, with a named person accountable for pulling the asset.

⚠️ Do not rely on a disclaimer. It may reduce confusion for a federal analysis; it rarely defeats a state publicity claim.

Tool 7 — License Valuation Worksheet

Complete in week one of any dispute. It sets the demand, frames discovery, and tells the client whether to proceed.

Input Value Source
Subject's prior license rates for comparable uses Best evidence — keep a rate history
Comparable rates for similarly situated individuals Agency data; industry sources
What the defendant paid others for equivalent placements Discovery
Agency rate card for this media and duration
Media of the actual use Evidence
Duration of the actual use Run dates
Territory Media plan
Reach: circulation, impressions, placements Media plan; discovery
Prominence: featured, incidental, packaging Evidence
Category exclusivity effectively taken Analysis
Reasonable license value
Defendant's revenue from the campaign Discovery
Apportionment analysis Expert
Statutory damages available? State statute
Punitive exposure — prior refusal or prior demand? Correspondence
Fees available — state statute or 15 U.S.C. § 1117?

⭐ The license value is the anchor. Every negotiation in this field is conducted around it, and a party who has not computed it is negotiating blind.

Tool 8 — 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]. [Company] has used [Client]'s [photograph / name / likeness / voice] in [describe], appearing in [media], from at least [date] to the present. Copies are enclosed at Tabs 1–[N].

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

Rights at issue. The use violates [Client]'s right of publicity under the law of [state]. Because it 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 obtained from the photographer conveys rights under 17 U.S.C. § 106 and 17 U.S.C. § 201 in the photograph only, and conveys no right to use [Client]'s identity commercially.

Demand. (1) Immediately cease all use and remove all digital assets. (2) Confirm in writing when all print, broadcast, and out-of-home placements will end. (3) Provide an accounting: media, run dates, territories, impressions, expenditures. (4) Remit $[amount], the reasonable license value of the use.

Preservation. Preserve all documents relating to acquisition, clearance, and use of the materials, including communications with any agency, photographer, or stock provider.

Please respond by [date].

Respectfully, [Name, contact]

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

Tool 9 — Takedown Request (Platform or Retailer)

Re: Unauthorized use of the likeness of [Name] — [URL / listing / item number]

I am [Name] / counsel for [Name]. The content at the location above uses [Name]'s [likeness / name / voice] commercially without consent, in violation of [Name]'s right of publicity under the law of [state], and in a manner conveying a false endorsement under 15 U.S.C. § 1125.

Identification. Content: [description and URL]. Date first observed: [ ]. Screenshots enclosed.

Statement. [Name] has not licensed this use, and no release covers it. I have a good faith belief the use is unauthorized.

Request. Removal of the content, and identification of the account holder or seller to the extent your policies permit.

[Signature, contact.]

⚠️ This is not a copyright notice, and the platform's copyright process may not apply. Use the platform's publicity or impersonation channel. Note that platform immunity generally limits claims against interactive services for user content, which is why the advertiser or seller is usually the effective target.

Tool 10 — NIL Deal Review Sheet

For the athlete, before signing.

Item Answer Flag
State NIL statute reviewed? Disclosure required?
Institutional policy reviewed? Conference rules?
Prohibited categories under statute, policy, or team sponsor conflict?
Agent registered where required?
International student — visa status advice obtained? ⚠️
High school — state association eligibility position?
Attributes granted, enumerated?
Media, territory, term?
Exclusivity — category, defined how? Term? Auto-renew? ⚠️
What deals does this foreclose? ⚠️
Deliverables specified with counts and formats?
Approval rights over content?
Compensation, schedule, contingencies?
Use of school marks — excluded? ⚠️
Morals clauses — both directions?
Termination on transfer, injury, eligibility loss?
Post-term use of content created during the term? ⚠️
Disclosure to institution — deadline calendared?
Taxes — self-employment; estimated payments set aside? ⚠️
Logged in the rights log?

The four flags above are where athletes lose money. Exclusivity and post-term use cost future deals; school marks cost the relationship with the institution; and the tax surprise arrives in April.

Tool 11 — Postmortem Planning Worksheet

Question Answer
Anticipated domicile at death
Does that state recognize a postmortem right?
Statutory term
Is registration required to preserve it? Deadline?
Is the right descendible and devisable there?
Existing licenses and their expirations
Existing exclusivity grants surviving death
Named manager with licensing and enforcement authority
Standards for permitted and prohibited uses
Trust or entity to hold the rights
Valuation approach for estate tax
Trademark registrations under 15 U.S.C. § 1051?
Digital replica rights after death — addressed?

Drafting notes. Address publicity rights expressly; a residuary clause may not transfer them effectively. File any registration. Consider that a registered mark, enforceable under 15 U.S.C. § 1114, can outlast any publicity term.

Tool 12 — Quick Reference

Do Never
Get two permissions: copyright and identity Assume a photo license covers the person
Enumerate attributes, media, territory, and term Grant "name, image, and likeness" without more
Define exclusivity narrowly and by example Grant a whole category for a long term
Negotiate post-term use Let an expired deal keep running
Carve out synthetic uses from "hereafter devised" Sign it unexamined
Use a separate, compensated digital replica addendum Rely on a general grant
Diary every release and license expiration Discover it in a demand letter
Preserve evidence before contacting anyone Watch the use disappear
Value the license in week one Negotiate blind
Check the domicile before assuming a postmortem right Assume the right survives death

Tool 13 — Authority Reference Card

Keep at the front of the file. Half the work in this field is knowing which body of law answers the question.

Question Authority
Does a right of publicity exist, and what does it cover? State statute or common law — check the specific state
Does the use imply endorsement? 15 U.S.C. § 1125
Injunctive relief on the federal claim 15 U.S.C. § 1116
Damages and fees on the federal claim 15 U.S.C. § 1117
Registering a name as a trademark 15 U.S.C. § 1051
Enforcing a registered mark 15 U.S.C. § 1114
Who owns the photograph? 17 U.S.C. § 201
What does copyright cover? 17 U.S.C. § 102
Exclusive rights in the image 17 U.S.C. § 106
Is the use fair? Transformative? 17 U.S.C. § 107; Campbell v. Acuff-Rose, 510 U.S. 569
Is the state claim preempted? 17 U.S.C. § 301
Unauthorized fixation of a live musical performance 17 U.S.C. § 1101
First Amendment limits on the publicity claim Zacchini v. Scripps-Howard, 433 U.S. 562
How college athletes obtained licensing rights NCAA v. Alston, 594 U.S. 69; 141 S. Ct. 2141
Postmortem rights State of domicile at death
Synthetic likenesses State digital replica statutes — check; they change often
Endorsement disclosure duties Advertising regulation — applies to both parties

How to use it. Identify what was used, by whom, for what purpose, and in which state. That sequence selects the rows above — and in a field this variable, selecting the right row is most of the analysis.

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