Toolkit · Intellectual Property

The Right of Publicity and NIL Toolkit

Type
Toolkit
Jurisdiction
National
Date
2026-02-26
Topic
Intellectual Property

The right of publicity gives a person the power to control the commercial use of their name, image, likeness, voice, and persona — a patchwork of state statutes and common law rather than a single federal regime. This toolkit maps the terrain stage by stage: what the right protects and where it comes from, the elements of a claim, the constitutional and equitable defenses (First Amendment, newsworthiness, transformative use, and Rogers v. Grimaldi), post-mortem and descendible rights, licensing and endorsement clearance, the NIL revolution in college sports, and the deepfake and AI-voice frontier now driving new legislation like Tennessee's ELVIS Act. It anchors each stage to leading authority — Haelan, Zacchini, Comedy III, and the California and New York statutes — and links out to UpLaw's publicity, advertising, privacy, and estate-planning resources for the deep dives. A running worked example follows a fictional athlete-creator, Dez Marlow, from a routine endorsement deal into a fight over an unauthorized AI-voice ad. Use it as a research map: read the stage, then follow the links.

The Right of Publicity and NIL Toolkit

Intellectual Property > Right of Publicity | Published 26 February 2026 - Updated 27 March 2026 | UpLaw - uplaw.us

Your face, your name, and now your voice are assets. The right of publicity decides who gets to sell them — and in a world of AI clones and multimillion-dollar NIL deals, that question has never been louder.

Keywords: right of publicity, name image and likeness, NIL, publicity rights, endorsement, Cal. Civ. Code 3344, N.Y. Civil Rights Law 50-51, Zacchini, transformative use, Rogers v. Grimaldi, post-mortem publicity, college sports NIL, deepfake, AI voice likeness, ELVIS Act, false endorsement

How to read this toolkit

This is a resource map, not a how-to. The right of publicity has no single home statute — it lives in roughly half the states as a statute, in others as common law, and nowhere as a comprehensive federal right. That fragmentation makes it easy to give wrong answers with confidence. The purpose of this toolkit is to give you a reliable mental model of the whole field and then hand you the specific UpLaw article, guide, or checklist that goes deep on each piece.

Work it in three passes. First, skim the "landscape at a glance" list below to see the whole board. Second, read the stage that matches your problem — are you licensing a persona, defending an expressive use, planning an estate, or fighting an AI clone? Each stage gives you the plain-English doctrine, the anchor authority you can cite, and the traps that catch people. Third, follow the inline links into the deeper resources and run the consolidated checklist near the end before you act.

Throughout, we follow a running hypothetical. Dez Marlow is a fictional professional soccer player with a large social following and a growing second career as a creator. Dez signs endorsement deals, has a distinctive gravelly speaking voice, and — midway through our story — discovers a supplement brand running an ad that uses an AI-generated clone of that voice without permission. Dez's problems will illustrate every stage.

The publicity landscape at a glance

  • What it protects — the commercial value of a person's identity: name, image, likeness, voice, signature, and sometimes broader "persona" or evocative attributes.
  • Where it comes from — state statutes (California, New York, Tennessee, Indiana, and others) plus common-law rights in many jurisdictions; no general federal right of publicity.
  • The claim — defendant used plaintiff's identity, for commercial or exploitative advantage, without consent, causing injury; statutes often add a "knowing use in advertising" element.
  • The defenses — First Amendment expression, newsworthiness/public-interest, the transformative-use test, and the Rogers test for titles and expressive works; consent and license are complete defenses.
  • After death — some states recognize a descendible, post-mortem right (California: 70 years; Tennessee and Indiana: long terms); others recognize none. Domicile at death usually governs.
  • Licensing — endorsement and NIL deals turn the right into revenue; clearance, scope, exclusivity, morals clauses, and residuals are the core deal terms.
  • College NIL — since 2021, student-athletes can monetize their name, image, and likeness through a fast-moving mix of state laws, school policies, and NCAA rules.
  • The frontier — deepfakes and AI voice/likeness clones are driving new statutes (Tennessee's ELVIS Act) and reshaping old doctrine.
  • The overlaps — publicity claims routinely travel with Lanham Act false endorsement, privacy torts, trademark, copyright, and biometric-privacy law.

What the right protects and where it comes from (statutes vs common law)

The right of publicity is best understood as the commercial cousin of the privacy torts. It protects the economic value of identity — the ability to control, and profit from, the use of who you are in the marketplace. The foundational statement is Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), where Judge Frank coined the phrase "right of publicity" and held that a ballplayer's grant of exclusive rights in his photograph was an assignable property right, not merely a personal privacy interest. The Restatement crystallized the modern tort: Restatement (Third) of Unfair Competition § 46 provides that one who appropriates the commercial value of a person's identity by using their name, likeness, or other indicia of identity for purposes of trade is subject to liability.

The doctrine splits along two axes you must always identify at the outset. First, statute or common law? More than half the states have a right-of-publicity statute; the two heavyweights are California (Cal. Civ. Code §§ 3344 and 3344.1) and New York (N.Y. Civ. Rights Law §§ 50-51). California also recognizes a parallel common-law right, so a plaintiff there can plead both. New York, by contrast, has no separate common-law right — the statute is the whole ballgame, which narrows what counts. Second, what indicia are covered? Names and photographs are universal; voice, signature, catchphrases, and broader "evocations" of identity vary by jurisdiction. California's statute expressly lists "name, voice, signature, photograph, or likeness."

For the doctrinal foundation — how these rights arise, who holds them, and how they differ from the privacy torts — start with UpLaw's The Right of Publicity: Controlling Commercial Use of Name, Image, and Likeness. Because publicity sits alongside trademark and copyright in most identity disputes, it also helps to see how those regimes divide the field in The Three Pillars of IP: How Copyright, Trademark, and Patent Differ.

Dez's baseline. Dez plays and posts from California and does most brand work through a California LLC. That means Dez has both the statutory right under § 3344 and the common-law right — a deliberate belt-and-suspenders posture that matters when we get to the AI-voice fight, because § 3344 expressly reaches "voice."

The elements of a right-of-publicity claim

Strip away the jurisdictional variation and the common-law claim reduces to four elements: (1) the defendant used the plaintiff's identity; (2) the use appropriated the plaintiff's name or likeness to the defendant's commercial or other advantage; (3) lack of consent; and (4) resulting injury. California's common-law formulation, drawn from Eastwood v. Superior Court, tracks this almost exactly.

The statutes add gloss. Cal. Civ. Code § 3344 requires a knowing use "on or in products, merchandise, or goods, or for purposes of advertising or selling," plus a "direct connection" between the use and the commercial purpose — and it supplies a damages floor ($750 or actual damages, whichever is greater, plus profits and potential punitive damages and fees). N.Y. Civ. Rights Law § 51 requires use "for advertising purposes or for the purposes of trade" without written consent. The recurring battleground is the line between a use that sells something (actionable) and a use that says something (protected expression) — the subject of the next stage.

Two threshold points trip people up. Identifiability: the plaintiff need not be named if they are reasonably identifiable — a look-alike, a sound-alike, or a distinctive evocation can suffice. The classic sound-alike case, Midler v. Ford Motor Co., held that deliberately imitating Bette Midler's voice to sell cars was actionable under California common law even though her actual recording was never used; White v. Samsung extended the idea to a robot evoking Vanna White. Standing to hold the right: publicity rights can be licensed and, in many states, assigned — so the plaintiff may be the individual, an exclusive licensee, or an estate.

Dez's claim. When the supplement ad airs, walk the elements. Use of identity — Dez's distinctive voice, cloned. Commercial advantage — a paid ad selling capsules. Consent — none. Injury — market harm to Dez's genuine endorsement value and the implication of a health-product endorsement Dez never gave. Under § 3344, add the knowing-use and direct-connection elements, both easily met by a scripted supplement spot. This is a strong claim before we even reach the AI-specific statutes.

The defenses: First Amendment, newsworthiness, transformative use, and Rogers v. Grimaldi

Every publicity claim runs into the First Amendment, because identity is also information, and the Constitution protects speech about real people. The defenses form a layered filter.

Consent and license come first and dispose of most disputes: a signed release or license is a complete defense within its scope. The litigation happens at the edges of scope — new media, new territories, new products — which is why licensing drafting (below) is where the real risk management lives.

Newsworthiness / public interest. Uses in news, commentary, biography, and matters of public concern are broadly protected. You cannot control the use of your name in a news report, a documentary, or a critical article merely because it has commercial value to a publisher. The Supreme Court's one venture into the field, Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), marks the limit: a television station that broadcast a performer's entire "human cannonball" act was not shielded by the First Amendment, because airing the whole act went to the economic heart of what the performer sold. Zacchini is narrow — it is about appropriating the entire act, not reporting on a person — but it establishes that the First Amendment does not automatically defeat a publicity claim.

Transformative use. California's signature test, from Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001), asks whether the challenged work merely reproduces the celebrity's likeness or adds significant creative transformation — new expression, meaning, or message — such that the work becomes the defendant's own. Charcoal drawings of the Three Stooges sold on T-shirts flunked the test (literal reproduction); a comic book reimagining musicians as villainous half-worm characters passed it (Winter v. DC Comics). The test has been criticized as unpredictable, and its future is unsettled after the Supreme Court's copyright fair-use decision in Andy Warhol Foundation v. Goldsmith (2023) sharpened how courts assess "transformation," but it remains the working California standard.

The Rogers test. For expressive works — especially titles and the content of films, songs, video games, and books — many courts apply Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989). Although Rogers is a Lanham Act trademark case, courts have imported it into publicity analysis: an artistic use of a person's identity is protected unless it has no artistic relevance to the work, or, if it has some relevance, unless it explicitly misleads as to source or endorsement. Rogers is the workhorse of the expressive-works defense, though its reach was recently narrowed in the trademark context by Jack Daniel's v. VIP Products (2023), which held Rogers does not apply when the mark is used as a source identifier — a wrinkle that also touches how UpLaw covers expressive-use disputes in Trademark Doctrine for Virtual Goods and NFTs: The MetaBirkins Landscape.

The practical takeaway: ads lose, art usually wins, and news almost always wins — but the hard cases live in the hybrid zone (video games featuring real athletes, biopics, "expressive merchandise") where courts split. For the free-speech and recording dimensions of using a real person's identity, see Cameras, Consent, and the Law of Recording People, and for the celebrity-persona angle in creative franchises, Who Owns the Superhero? Landmark Copyright and Trademark Battles.

Dez's defense analysis. The supplement brand will reach for the First Amendment, but it has nothing to grab. The ad is pure commercial speech selling a product; it is not news, not biography, not a transformative artwork, and the voice has no artistic relevance under Rogers — it is a source-identifying endorsement signal. Every defense filter passes the claim straight through.

Post-mortem and descendible rights (and the estate-planning link)

The right of publicity does not necessarily die with the person. Whether it survives — and for how long — depends entirely on the state whose law governs, which is usually the state of the individual's domicile at death. California's § 3344.1 recognizes a descendible right lasting 70 years after death; Tennessee protects it for as long as it is continuously exploited (with a 10-year minimum); Indiana provides an especially long and broad term. New York, historically, recognized no post-mortem right at all until its 2020 amendment created a limited 40-year post-mortem right for "deceased performers" and added protections against sexually explicit deepfakes and unauthorized "digital replicas."

Because the right is descendible and licensable in these states, it is a transferable asset that belongs in the estate plan — assignable during life, devisable at death, and capable of generating royalties for decades (the enduring licensing of deceased musicians and actors is the proof of concept). Domicile planning genuinely matters: an entertainer domiciled in a no-post-mortem state may forfeit rights an identical entertainer would keep next door.

For how publicity rights fold into wills, trusts, and succession planning, the anchor resource is Passing Down Your IP: Copyright, Patents, Publicity Rights, and Estate Planning. Fit it into the broader wealth-transfer picture with the sibling The Estate Planning and Wealth Transfer Toolkit, and, for high-value personas exposed to creditors, consider the structures discussed in Domestic and Offshore Asset Protection Compared: A Wealth-Defense Field Guide.

Dez's plan. As a California domiciliary, Dez should treat the persona as an IP asset: hold the publicity rights in an entity, assign them by written agreement, and address them in the estate plan so that the 70-year post-mortem right is captured, valued, and directed rather than left to intestacy.

Licensing, endorsements, and clearance

Most of the money — and most of the avoidable litigation — is in licensing. An endorsement or NIL deal is a license of publicity rights, and its value lives in the fine print. The core terms:

  • Grant and scope — exactly which indicia (name, image, likeness, voice, signature), for which products, media, and channels. Voice and "digital replica" rights should now be called out expressly rather than assumed.
  • Territory and term — where and for how long, plus renewal and sell-off (permission to run out existing inventory after termination).
  • Exclusivity — category exclusivity (no competing supplement brands) is the value driver for the talent and the risk driver for the brand.
  • Approvals — the individual's right to approve creative, likeness treatments, and especially any AI-generated or altered versions of their image or voice.
  • Morals clauses — bilateral where possible: the brand can exit on the talent's scandal; the talent can exit on the brand's.
  • Compensation — flat fee, royalty, equity, or a mix, with clear residual/usage-based payments for continued running.
  • AI/digital-replica clause — the new essential term: whether, how, and with what consent and compensation the brand may synthesize the talent's voice or image.

Endorsement deals also carry advertising-law obligations independent of publicity: the FTC's endorsement guides require disclosure of material connections, and false or unsubstantiated claims expose both talent and brand. Route the compliance side through The Advertising and Marketing Law Toolkit and the plain-English Advertising Law for Small Businesses: A Practical FAQ; for the false-endorsement exposure specifically, see False Advertising Under Lanham Act Section 43(a): Competitor Claims in Tech Marketing. Where the persona is a musician, the licensing overlaps heavily with music rights — see The Music Law Toolkit: Rights, Royalties, and Registration and Music Licensing in the Streaming Age: Mechanical Royalties, the MLC, and Direct Deals. And because deals are made and broken on social platforms, the platform-terms and disclosure layer sits in Social Media Law: A Field Guide to the Legal Stack.

Dez's contracts. Dez's endorsement template already grants category-exclusive image and name rights to approved brands — but an early version was silent on voice and AI. After the clone incident, Dez's counsel adds an explicit clause: no synthesis, cloning, or "digital replica" of Dez's voice or likeness without separate written consent and separate compensation, with all AI uses subject to prior creative approval. That one clause converts a gray area into a clean breach if a licensed brand later oversteps.

NIL in college and amateur sports

For decades, amateurism rules barred college athletes from monetizing their fame. That wall fell in 2021. The Supreme Court's decision in NCAA v. Alston (2021) — technically about education-related benefits under antitrust law, but sweeping in tone — signaled that the NCAA's restraints were vulnerable, and within days the NCAA adopted an interim policy allowing student-athletes to earn from their name, image, and likeness. The result is a fast-moving, three-layer patchwork: state NIL statutes (differing on agents, disclosure, and school involvement), conference and school policies, and evolving NCAA rules — now overlaid by litigation and settlements pushing toward direct revenue-sharing with athletes.

Practically, college NIL is ordinary right-of-publicity licensing applied to a newly eligible population, plus a layer of eligibility compliance. The recurring issues: disclosure and registration of deals, use of collectives and boosters, agent and representation rules, tax treatment of NIL income, and — for minors and international student-athletes — consent and visa complications. The doctrine is the same right of publicity described above; what is new is who holds monetizable rights and the regulatory scaffolding around them.

Dez, before the pros. In our timeline, Dez's first paid deals came as a college athlete under a state NIL law — a licensing agreement disclosed to the school's compliance office, run through a collective, with a parent co-signing because Dez was still a minor at signing. The lesson that carried into Dez's pro career: paper every use, disclose what the rules require, and never assume "amateur" means "no rights."

The frontier: deepfakes, AI voice/likeness, and new state laws

Generative AI has turned voice and likeness from things you capture into things you synthesize. A few seconds of audio can train a convincing voice clone; a handful of images can build a video deepfake. That collapses the old assumption behind publicity law — that using someone's identity required using their actual recording or photograph — and it is driving a wave of new legislation.

The landmark is Tennessee's ELVIS Act (the Ensuring Likeness, Voice, and Image Security Act, 2024), the first state law to expressly protect an individual's voice as a property right against AI cloning and to reach the tools and services that make unauthorized replicas. It updated Tennessee's existing personal-rights statute to cover the deepfake era head-on. Other states have followed with digital-replica statutes (California enacted laws in 2024 governing digital replicas of performers in contracts and after death; New York's 2020 amendments already reached digital replicas and explicit deepfakes), and federal proposals to create a national digital-replica right have been introduced but not enacted. Existing doctrine still does real work here: Midler and White already established that evocation and imitation can be actionable, and § 3344's coverage of "voice" reaches a clone that is recognizably the plaintiff.

The AI frontier also implicates biometric-privacy law, because training a voice or face model typically involves processing biometric identifiers — a separate and sometimes stricter regime. For that overlay, see Biometric Privacy Law and the AI Systems That Read Faces and Voices, and for the broader liability map, Key Legal Issues in Artificial Intelligence: A Comprehensive Guide for Business and Counsel.

Dez's AI-voice fight. The supplement ad used a cloned voice, not a recording — the exact scenario the old law strained to reach and the new law was built for. Dez's counsel stacks the theories: (1) California common-law appropriation and § 3344, which reaches "voice" and squarely covers a recognizable sound-alike under Midler; (2) where a nexus exists, the ELVIS Act's express voice-cloning protection; (3) Lanham Act § 43(a) false endorsement, because the ad falsely implies Dez endorses the product; and (4) potential biometric-privacy claims arising from how the clone was trained. Overlapping theories are a feature, not redundancy — they hedge against any single doctrine's uncertainty and expand the available remedies.

Overlaps with trademark, false endorsement, privacy, and copyright

Publicity claims rarely travel alone. Knowing the neighbors prevents both under-pleading and over-reaching.

  • Lanham Act false endorsement (15 U.S.C. § 1125(a)). When an unauthorized use falsely suggests a celebrity endorses a product, it is federal false-association — the theory in Waits v. Frito-Lay and the standard federal companion to a state publicity claim. This is often the strongest federal hook.
  • Trademark. A persona can also be a trademark (personal names, signatures, and catchphrases can be registered), so enforcement may sound in both publicity and trademark. The regimes' boundaries are mapped in Copyright and Trademark: Where the Two Regimes Diverge and Overlap.
  • Privacy torts. Publicity is the commercial sibling of the appropriation privacy tort; the same facts may also raise intrusion, false light, or disclosure claims — and recording-consent issues covered in Cameras, Consent, and the Law of Recording People.
  • Copyright. A crucial trap: the photographer usually owns the copyright in a photo, while the subject owns the publicity rights in their likeness. Using a photo can require clearing both. Copyright also raises a preemption question — courts hold that publicity claims survive preemption when they target the use of identity rather than the reproduction of a copyrighted work. Map copyright's territory with The Copyright Law Toolkit: A Complete Resource Library.

The discipline is to plead the theories that fit the facts — publicity for the identity value, § 43(a) for the endorsement implication, trademark where the persona functions as a mark, copyright and privacy where the medium demands it — and to resist stretching any one of them past its doctrine.

The landscape as a working checklist

Gate every publicity matter through these questions before you advise or act.

  • [ ] Which state's law governs? Identify the individual's domicile and the place of use; determine whether the state has a statute, a common-law right, both, or neither.
  • [ ] What indicia are at issue? Name, image, likeness, voice, signature, catchphrase, or broader evocation — and does the governing law cover each?
  • [ ] Is the use commercial or expressive? Advertising and merchandise (actionable) versus news, commentary, biography, and art (usually protected).
  • [ ] Run the defenses. Newsworthiness/public interest; transformative use (Comedy III); the Rogers test for expressive works and titles; and above all, consent/license.
  • [ ] Is there a license or release? If so, is the challenged use within its scope, term, territory, media, and product category?
  • [ ] Identifiability. Is the plaintiff reasonably identifiable even without a name — look-alike, sound-alike, or evocation?
  • [ ] Post-mortem? If the individual is deceased, does the governing state recognize a descendible right, for what term, and who holds it now?
  • [ ] AI/digital replica? Was the identity synthesized rather than captured? Check voice-specific and digital-replica statutes (ELVIS Act, state digital-replica laws) and biometric-privacy exposure.
  • [ ] NIL compliance. For student-athletes, layer state NIL statutes, school/conference policy, NCAA rules, disclosure, agent rules, and minor consent.
  • [ ] Companion claims. Consider Lanham Act § 43(a) false endorsement, trademark, privacy torts, and copyright — and clear third-party copyrights (e.g., the photographer's) before using an image.
  • [ ] Remedies. Injunction, actual damages and profits, statutory damages (e.g., § 3344's $750 floor), and attorney's fees where the statute allows.
  • [ ] Estate/asset planning. For valuable personas, hold rights in an entity, document assignments, and capture the post-mortem right in the estate plan.

Primary Authority

Secondary Sources

  • J. Thomas McCarthy, The Rights of Publicity and Privacy (the field's leading treatise).
  • Restatement (Second) of Torts § 652C (appropriation privacy tort — the doctrinal ancestor).
  • Additional illustrative cases: Midler v. Ford Motor Co. (sound-alike voice); White v. Samsung Electronics America (evocation of identity); Waits v. Frito-Lay (false endorsement via voice imitation); Winter v. DC Comics (transformative comic-book use); Andy Warhol Foundation v. Goldsmith (2023) (reshaping "transformation" analysis); Jack Daniel's v. VIP Products (2023) (narrowing Rogers where identity functions as a source identifier).

Related UpLaw Resources

Related Guides & Articles

Related Toolkits

This toolkit is general legal information from UpLaw (uplaw.us), not legal advice, and does not create an attorney-client relationship. The right of publicity is governed by a patchwork of state statutes and common law that changes rapidly, especially around AI and NIL; verify the current law of the governing jurisdiction and consult qualified counsel before acting.