The Right of Publicity and Nil: A Comprehensive Guide

93 questions on the right of publicity and nil, answered and cited by the UpLaw editorial team.

• Are athlete agents regulated?
• Are historical sports highlight films protected against publicity claims?
• Can a catchphrase alone violate someone's right of publicity?
• Can a distinctive object identify a person for right-of-publicity purposes?
• Can a drawing rather than a photograph violate the right of publicity?
• Can a publisher advertise its own protected work using someone's identity?
• Can a state protect publicity rights of people domiciled elsewhere?
• Can a state revive a post-mortem publicity right that did not exist at death?
• Can a synthetic AI-generated athlete in an ad violate the right of publicity?
• Can the same video game be lawful under the Lanham Act but unlawful under the right of publicity?
• Does a music sync and master license clear the artist's identity?
• Does continuous online availability restart the limitations period for a publicity claim?
• Does copyright preemption defeat a claim over an AI-generated likeness?
• Does insurance cover right-of-publicity claims?
• Does Jack Daniel's v. VIP Products affect right-of-publicity cases?
• Does letting users customize an avatar save a game publisher from a publicity claim?
• Does making money from a use make it “commercial speech”?
• Does New York have a common-law right of publicity?
• Does the newsworthiness privilege cover digitally altered editorial images?
• How broad is the newsworthiness privilege?
• How did Marilyn Monroe's estate lose her publicity rights?
• How did the college athlete NIL market actually begin?
• How do the three First Amendment tests compare?
• How is choice of law decided for a nationwide campaign?
• How is disgorgement of profits handled in a publicity case?
• How is the lost licensing fee measured in a publicity case?
• How long do post-mortem publicity rights last in the major states?
• Is an indemnity from an AI vendor adequate risk transfer?
• Is the NO FAKES Act law?
• What are Prosser's four privacy torts, and which one became the right of publicity?
• What are the costs of pleading a Lanham Act false-endorsement claim?
• What are the criticisms of the transformative-use test?
• What are the elements of a common-law right-of-publicity claim?
• What are the essential rules to remember about the right of publicity?
• What are the three kinds of state right-of-publicity regimes?
• What compliance issues do NIL collectives face?
• What did NCAA v. Alston decide?
• What did O'Bannon v. NCAA hold?
• What did the Copyright Office recommend about digital replicas?
• What did the House settlement establish?
• What did Wendt v. Host International hold about animatronic robots?
• What does California AB 1836 do?
• What does California AB 2602 do?
• What does California Civil Code § 3344 prohibit and what remedies does it provide?
• What does Lanham Act § 43(a) add to a right-of-publicity case?
• What does Restatement § 47 say is NOT a use “for purposes of trade”?
• What does the right of publicity protect?
• What does the TAKE IT DOWN Act do?
• What exactly did Haelan Laboratories decide?
• What exactly does Zacchini hold, and what does it not hold?
• What happened after the Keller and Hart litigation?
• What has the FTC done about AI impersonation?
• What is an AI vendor's best defense under the ELVIS Act's tool provision?
• What issues arise with high school and minor athletes' NIL deals?
• What is the anti-SLAPP risk for a right-of-publicity plaintiff?
• What is the central line between actionable and protected uses of identity?
• What is the clearance workflow that prevents a publicity lawsuit?
• What is the estate-planning lesson from the Monroe litigation?
• What is the Ninth Circuit's line of copyright-preemption cases in publicity law?
• What is the predominant-use test?
• What is the Rogers v. Grimaldi test?
• What is the rule for game and app developers depicting real people?
• What is the test for copyright preemption of a publicity claim?
• What is the transformative-use test and what question does it ask?
• What is the “unwritten fifth element” of a publicity claim?
• What litigation is the House settlement framework likely to generate?
• What other legal regimes does a synthetic-likeness case activate?
• What practical differences follow from treating publicity as property rather than privacy?
• What should a brand do before running a campaign built on a celebrity's identity?
• What should the grant-of-rights clause in an endorsement agreement cover?
• What special NIL issues do international student-athletes face?
• What terms most often cause endorsement-agreement disputes?
• What three limits are built into the Midler voice rule?
• What two changes did the ELVIS Act make to Tennessee law?
• What was the Roberson case and why did it matter?
• When are punitive damages available in a right-of-publicity case?
• Where does the harm from AI cloning of ordinary people fall?
• Where does the Restatement place the right of publicity, and why does that matter?
• Which forms of appropriation escape a typical publicity statute but not the common law?
• Which state first recognized the appropriation tort at common law?
• Who bears FTC exposure when an endorser fails to disclose a material connection?
• Who owns a college athlete's NIL rights?
• Why did Bette Midler's statutory claim fail but her common-law claim succeed?
• Why did EA lose the college athlete video game cases when it never used the players' names?
• Why did the Cardtoons parody cards win when the Spawn villain lost?
• Why does generative AI break the classical assumptions of publicity law?
• Why does Zacchini matter for AI cases?
• Why do statutory minimum damages matter in AI publicity cases?
• Why is asking a celebrity and being refused so dangerous for an advertiser?
• Why is Indiana a forum-shopping magnet for publicity claims?
• Why is the right of publicity a better fit for AI voice cloning than copyright?
• Why should a publicity plaintiff plead a Lanham Act claim too?
• Will a court enjoin an expressive work in a publicity case?