Picture two phone calls on the same Monday. The first is from a fitness instructor with a modest following. A friend has just sent her a local gym's Instagram ad with her face on it, and she wants to know what she can get. The second is from the gym's owner, who has received a letter from a lawyer demanding $75,000 and who has no idea where the marketing kid found the picture. Both callers think the answer depends on whether permission was obtained. Mostly it depends on things neither has thought about yet: who in that gym's audience recognizes her, how long she has been sitting on the problem, what the gym's insurance policy excludes, and whether anybody has saved a copy of the post.

For the doctrine behind these steps, read False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin. This guide is about what to do, in what order, and what it costs you if you skip a step.

The short answer

  • Preserve first, on both sides, before anything comes down. A claimant needs dated captures with URLs. A defendant has a duty to preserve once a claim is reasonably anticipated, and deleting the post without saving it creates a second problem.
  • Calendar the short state period on day one. The Lanham Act has no statute of limitations, but New York's right of publicity period is one year from first publication, and a state claim is often the one with the better liability theory.
  • Claimants: test recognizability honestly before spending money. If the target audience does not know who you are, the federal claim is weak, and the state claim, a contract claim, or the photographer's copyright may be the real asset.
  • Defendants: tender to the insurer immediately and read the exclusions. Entertainment and marketing exclusions have defeated coverage in reported cases, while other courts have refused to enforce them. Late notice is a self-inflicted wound either way.
  • Raise every defense early. In the Bob Marley T-shirt case, the defendants waived Rogers, Dastar, and functionality by failing to develop them, and lost a jury verdict on the merits.
  • If you hire a survey expert, fund a proper one. Surveys without a control group, without a "don't know" option, or with lumped stimuli have been excluded repeatedly in these cases.
  • Damages need a model, and profits need a causal story. Courts have struck speculative valuation experts, and a plaintiff who wins liability can leave with nothing.
  • To clear a use, get written consent running to your company, for this use, and keep it where you can find it. Someone else's release generally will not protect you, and a sound-alike or a clone built to evoke a person who said no is the worst fact you can create.

Where you are in the sequence

Most false endorsement disputes follow one of three tracks. The sections below are written so that you can start in the right place.

You are Your first decision Start here Your first deadline
A person whose identity was used Whether the claim is federal, state, contract, or copyright Part I, Step 1 State limitations period, sometimes one year
A business that received a letter Preservation, takedown, and tender Part II, Step 1 Response date in the letter, insurer notice terms
A team planning a campaign What consent you need, from whom, in writing Part III Before production begins

Part I: Bringing a claim

Step 1: Capture the evidence (days 0 to 2)

Who does it: the client, the client's assistant, or better still a paralegal or vendor who can later testify. The person who captures should be someone you are comfortable putting on a witness stand.

Save, for every use you can find:

  • A full-page screenshot showing the URL, account name, date, caption, and comments, plus a video capture if it is a Reel or ad with sound.
  • The platform's public ad record where one exists, such as a Meta Ad Library entry, including start date and geographic reach. Ads disappear from view quickly.
  • Comments and direct messages from anyone who reacted. "Saw you're working at Copperline now!" is more valuable than almost anything else you will gather, because actual confusion from real people is rare. In Wendt v. Host International, Inc., 125 F.3d 806 (9th Cir. 1997), declarations about strangers approaching the actors helped defeat summary judgment.
  • The photograph's chain of title as far as you know it: who shot it, under what agreement, and whether you signed anything.

For authentication under Fed. R. Evid. 901, a capture from someone who can say "I visited this page on this date and this is what I saw" usually does the job. If the content may be synthetic, keep the highest-quality copy you can find and do not re-encode it. Later forensic work depends on it. For the evidentiary detail, see Authenticating Text Messages, Chats, and Social Media Evidence: Rules 901 and 902, Metadata, and Deepfake Challenges.

Do not reply to the post, tag the business, or threaten anyone online. A public accusation can create a defamation problem and gives the defendant time to scrub the record before you have a copy.

Step 2: Calendar limitations (day 1)

There is no limitations period in Section 43(a). Courts apply laches, generally measured against an analogous state period. State claims have their own clocks, and these differ sharply.

Claim Example period Trap
New York Civil Rights Law §§ 50 and 51 One year under C.P.L.R. § 215(3) Single publication rule. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), most state claims were lost because posts were more than a year old when suit was filed
D.C. misappropriation Three years, as applied in Toth Gray v. Harco, Inc., No. 22-cv-1393 (D.D.C. June 17, 2024) The discovery rule helped at the pleading stage, but do not assume it elsewhere
Pennsylvania claims The defendants in Lopez v. Conchetta, Inc., No. 2:23-cv-05030 (E.D. Pa. May 21, 2024) argued one, two, and four years depending on the count Courts often decline to resolve this on the pleadings. See also Guzman v. Telfair, Inc., No. 5:25-cv-02290 (E.D. Pa. Mar. 10, 2026)
Lanham Act No statute; laches Long delay can rebut the injunction presumption and prejudice the claim even if damages survive

Check the law of every state with a plausible claim, including where you live and where the ad ran. If a federal court later declines supplemental jurisdiction, 28 U.S.C. § 1367(d) tolls the state period during the federal case and for a short time afterward, but read it carefully and do not treat it as a reason to file late. A protective state filing or tolling agreement is cheap insurance. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), the plaintiffs' remaining timely state claims were sent away once the federal claims failed.

Step 3: Test the claim against six questions (week 1)

Answer these on one page before you send anything.

  1. Who is the audience, and do they know you? Think about the defendant's customers, not your followers. Souza rejected declarations that models had "achieved celebrity status," while Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001) accepted a surf historian's declaration about surf legends and a surf wear catalog.
  2. Does the use suggest you approve? An image used in an ad does. A trivia question may not. Compare Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) with the nominative use analysis of Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002).
  3. Is it advertising or expression? A club's promotion is ordinary commercial speech. A film, show, or game gets Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) in the circuits following it, as applied to a likeness in Hara v. Netflix, Inc., No. 23-3768 (9th Cir. July 28, 2025) and Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013).
  4. Did you sign something? A release to the photographer may limit rights against that party and its permitted users. In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), broad releases to third parties did not protect strangers who never got a license, but a release that actually runs to the defendant is a defense.
  5. Is your identity being used as a source signal or as a product? A voice actor's voice functioning as narration is a tough federal claim after Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025). A famous person's voice imitated to borrow reputation looks like Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).
  6. What is your commercial injury? The Souza plaintiffs could not point to a single lost job, and a bare claim for the fee they should have been paid failed their false advertising count. Clemente Properties, Inc. v. Pierluisi-Urrutia, No. 23-1922 (1st Cir. Jan. 16, 2026) recognizes that harm to business reputation counts, even without lost sales, but you need facts.

Use the answers to sort the case.

Result What it usually means Sensible next step
Well known to this audience, ordinary ad, no release to defendant Strong Lanham Act and state claims Demand letter with a draft complaint, or file
Modest recognition, ordinary ad State claim strong, federal claim uncertain Build evidence, consider state court, price the case realistically
Unknown to the audience, ordinary ad Federal claim weak, state claim may be fine State claim, copyright through the photographer, takedown
Expressive work, no explicit misstatement Federal claim weak; state claim depends on transformative use Read Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide
You licensed it and they exceeded scope Contract and possibly Section 43(a) Review the agreement first; see the release lesson in Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008)

Step 4: Build recognizability evidence (weeks 1 to 8)

This is where these cases are won or lost, and it is largely a matter of preparing the right file. The Souza record shows what falls short: identical declarations, follower counts, and a résumé of magazine appearances without evidence the plaintiff was recognized for them. Plan to replace generalities with proof tied to the defendant's market.

Evidence Weight How to get it
Unsolicited messages from people who thought you were affiliated High Client's inbox, comments, friends, former clients
Well-designed recognition survey of the defendant's customers High, if admissible Survey expert; see Step 5
Licensing history: named brands, fees paid, usage terms High, also supports damages Contracts, invoices, agency statements
Earned press, awards, television or film credits with audience figures Moderate to high Clippings with circulation data
Audience analytics by geography and demographic, matched to the defendant's location Moderate Platform insights exported with dates
Third-party declarations from people in the relevant community Moderate. Downing credited one Trade press editors, historians, agents
Search interest over time in your name in the relevant market Modest Dated exports; expert may be needed to explain
Raw follower counts Low on their own Include as context only; bots and global reach undercut them
The plaintiff's own statement that she is famous Very low Use only to introduce other evidence

Non-celebrities can succeed, but the showing has to fit the niche. Hauf v. Life Extension Foundation, 547 F. Supp. 2d 771 (W.D. Mich. 2008) kept a claim alive on the theory that a cancer survivor might have notoriety among cancer patients and advocates of alternative medicine. Be careful with the defendant's own conduct as proof. Choosing a particular person deliberately helps on intent, while grabbing any attractive photo, as the Electra contractors did, cuts against you on both recognition and bad faith.

Step 5: Decide whether to commission a survey (months 2 to 6)

A survey is not required. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015) says actual confusion is relevant but not required, and Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) granted summary judgment after refusing to rely on the survey offered there. But in a case of modest recognition, without a survey you may have nothing else. Budget generously and get a quote early. Surveys often cost tens of thousands of dollars, and more if they run in several markets or test many images. Do the arithmetic against the realistic recovery before you spend the money.

The Second Circuit's rulings in Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021) and Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023) read like a specification sheet for what to avoid. Build the survey so that:

  • The universe matches the defendant's prospective customers. Geography matters when the ad reaches one city.
  • There is a control. In Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015), the test group saw a Marley shirt and the control saw a shirt with an unknown man with dreadlocks. The court accepted the data as showing some confusion, 37 percent versus 20 percent, even with imprecise answers. Souza faulted the absence of a control.
  • Each plaintiff and image is tested separately. Lumping every image together meant the Souza survey could not differentiate among plaintiffs.
  • Respondents can say "I don't know" and are told not to guess. Both Second Circuit opinions fault the lack of that option.
  • Recognition means recognition. A respondent who says the face looks familiar has not recognized anyone. Ask who the person is and accept only an identification, or a meaningful descriptor, that can be checked.
  • The stimulus matches what consumers actually saw, and shows the full image as it ran. Do not test a clean face if the ad cropped it, and do not crop if it did not.
  • You test the actual statutory question. Who do respondents believe sponsored or approved this? Is that because of who the person is?
  • All plaintiffs are covered, or there is a defensible sampling plan. The argument that testing more images would have been too expensive was rejected in Electra.

The legal standard is Fed. R. Evid. 702, which since the 2023 amendment states expressly that the proponent must show admissibility is more likely than not. Souza acknowledged that reasonable judges might treat flaws as going to weight, but it held exclusion was within the court's discretion, and abuse of discretion review makes a loss hard to undo. Sink time into the design before fieldwork, not into a declaration afterward. For method, read Consumer Survey Expert Methodology in Trademark Cases: A Practical Guide and the Federal Judicial Center's Reference Guide on Survey Research by Shari Seidman Diamond.

Step 6: Choose the first move (weeks 1 to 8)

You have four main options, and they are not mutually exclusive.

A platform complaint. Fast and cheap, and sometimes effective. Most large platforms have impersonation, privacy, and intellectual property forms. A DMCA notice under 17 U.S.C. § 512(c)(3) must come from the copyright owner or someone authorized by the owner, which is usually the photographer and not the model. A false notice has its own consequences. For cooperative photographers, ask them to send it.

A demand letter. It usually gets the post down. A good one identifies each use with dates, names the legal theories without overstating them, demands preservation, states what you want, and sets a date. Do not claim a federal right you cannot back up. Do not demand a number you cannot explain. The toolkit has a template, and the broader principles are in Drafting a Trademark Cease-and-Desist Letter.

Suit. Choose this when delay matters, when the defendant has ignored you, or when the limitations period is near. Rule 11 applies to recognition allegations as to everything else, and Souza describes at length the many similar suits brought by the same counsel, and quotes the identical declarations. A judge who has seen the form before will read it skeptically.

A preliminary injunction. Worth considering only if the use is ongoing, damaging, and recent. See Step 9.

If the defendant is a real business with insurance, the best first step is often a detailed letter with enough evidence that its carrier can evaluate it. If it is an anonymous seller using a clone of your voice, go to the platform, the payment processor, and the registrar first, and consider a suit against Doe defendants mainly as a means of getting discovery.

Step 7: Pick forum and defendants (before filing)

Federal court is available for the Lanham Act claim, and state claims can come along under 28 U.S.C. § 1367. Think about what happens if the federal claim falls. In a modest-recognition case in the Second Circuit, a state court may be better for a New York claim, though that decision has a cost: you lose nationwide reach and the Lanham remedies. Where the ad was aimed at one city, personal jurisdiction is usually simple. Where a foreign seller aimed at everyone, read Personal Jurisdiction Over Online and Foreign Defendants: From Zippo to Ford Motor. For forum mechanics, see Getting Into or Staying Out of Federal Court: A Practical Guide to Jurisdiction and Removal.

Name defendants deliberately:

Step 8: Plead facts (filing)

Fed. R. Civ. P. 8 as read in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009) requires facts. In Canas v. Brama 1 Inc., No. 1:23-cv-11762 (D. Mass. Aug. 12, 2025) (report and recommendation), a magistrate judge recommended denying default judgment even against defendants who had not appeared, because allegations made on information and belief, without recognition facts, did not state a claim. Compare Guzman v. Telfair, Inc., No. 5:25-cv-02290 (E.D. Pa. Mar. 10, 2026), which accepted allegations of professional reputation and false affiliation. Plan for the stricter court.

Sample recognition allegation, to be adapted to true facts:

Plaintiff has appeared as the featured model in advertising campaigns for [brand], [brand], and [brand] between [year] and [year], and those campaigns ran in [media] reaching [audience figure] in [market]. Plaintiff has been the subject of [articles] in [publications] read by [audience]. Patrons of [defendant's business type] in [market] are drawn from the same group. After Defendant's post appeared on [date], at least [number] persons, including [description], contacted Plaintiff to ask whether she was working with Defendant.

Sample commercial-injury allegation:

Plaintiff earns income by licensing her image for endorsements at rates between [$] and [$] per campaign. Her agreements and her reputation depend on her ability to control which businesses she appears to support. Defendant's use falsely associated her with [category], which she has declined to promote, and has caused [specific harm], including [the withdrawal of an offer by a named party, or a loss in bookings beginning on a date].

If the identity at issue is a voice used commercially, plead secondary meaning directly. Lovo faulted plaintiffs for failing to allege that their voices were primarily significant as brands, and listed the factors that apply, such as advertising, consumer studies, sales success, unsolicited media coverage, and attempts to plagiarize.

Step 9: Consider emergency relief

A plaintiff seeking an injunction gets a rebuttable presumption of irreparable harm under 15 U.S.C. § 1116(a) on a showing of likely success, and must still satisfy Fed. R. Civ. P. 65. Recognizability problems reappear at this stage, since likely success is the entry ticket. Delay is the common way to lose. If you knew of the ad for eight months, the presumption is under pressure. Practical details are in Winning or Opposing a Trademark Preliminary Injunction: A Practical Guide.

Ask for what you need and be precise. The court in Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) did not bar the lookalike from working. It forbade ads unless they made completely clear he was a lookalike and that Allen had nothing to do with the project, through a bold and unequivocal disclaimer or otherwise. Narrow requests are easier to win, and they answer the First Amendment objection.

Step 10: Model the money early

Section 43(a) gives you the structure in 15 U.S.C. § 1117(a): profits, damages, costs, and fees in exceptional cases. Build each column before filing and revisit it as you learn more.

Be realistic about scale. In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), the one plaintiff who won her Lanham Act claim was denied damages and fees. In Beastie Boys v. Monster Energy Co., 66 F. Supp. 3d 424 (S.D.N.Y. 2014), with a famous band, an admitted knowledge of non-endorsement, and a distinctive use, the Lanham Act award was $500,000. Most small-audience cases sit far closer to the first than the second.

Part II: Defending a claim

Step 1: Preserve, then remove (days 0 to 2)

Issue a litigation hold to whoever controls the accounts, including outside vendors. Capture the live post, its metrics, comments, ad spend, targeting, and any drafts. Then decide about removal, which you should almost always do unless there is a real expressive reason to stay up. Continued use after notice is the sort of fact courts cite on willfulness. In Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015), a warning call to a licensing executive before sales began supported the finding. Do not forget reposts, pinned content, third-party directories, and event pages. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), one post stayed live for years because of a lost password, which is a bad story to tell a judge.

Your preservation duty extends to vendor files and messages under Fed. R. Civ. P. 37(e). See Litigation Holds, Spoliation, and Rule 37(e): Preserving Electronic Evidence Before It Costs You the Case.

Step 2: Tender to insurers and vendors (days 1 to 7)

Send the letter to your broker and carrier the same week, under every policy that might respond: commercial general liability, media or professional liability, and any cyber policy with media coverage. Coverage B of a general liability policy may be the place to look, but read the exclusions before assuming anything.

Notice is cheap. Ask for a written coverage position, and ask whether the carrier will defend under reservation of rights. Consider independent counsel issues where the state allows it. Also send a tender to any agency, freelancer, or stock house that supplied the image, relying on contract warranties if they exist. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), the club impleaded its social media vendor. For the mechanics, use Insurance Coverage Toolkit: Placing, Tendering, and Litigating Claims.

Step 3: Find out what happened (weeks 1 to 2)

Have counsel run the interviews so that privilege has a chance to attach. You need to learn who chose the image, from where, what rights anybody believed existed, whether anyone asked for a specific person, and whether anyone looked for a license. Electra is the map. The club asked for images matching an event and never named anyone, and that helped defeat bad faith. On the other side, the contractor could not produce any license from the supposed source, and the clubs never asked for written confirmation. Failure to investigate did not establish bad faith on the Lanham Act count in that case, but it did nothing to help the New York state claim, where the absence of consent was the whole game.

Check whether the claimant actually signed anything that runs to you, and read the actual terms. Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) turned on a clause that allowed use "provided, however, such use does not constitute an endorsement of any product or service." If your release has that kind of exception, it may not help you where you need it most.

Step 4: Answer the letter (weeks 1 to 3)

If you are going to be sued anyway, the letter will be Exhibit A. Use it to communicate three things: the post is down and steps have been taken, you do not admit liability, and here are the reasons the claim is weaker than the letter suggests. Asking for the claimant's evidence of recognition and injury is a legitimate and revealing request. Make any offer under Fed. R. Evid. 408, and keep it to a release that covers all known uses and all related parties, including your agency. The toolkit has a template, and Responding to a Cease and Desist Letter: A Practical Guide covers the general approach.

Step 5: Move early on the defenses that can be decided early (months 1 to 4)

Under Fed. R. Civ. P. 12, courts have resolved several of these issues on the pleadings:

Rogers, for expressive works. Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013) affirmed dismissal after the court reviewed the games themselves, and Hara v. Netflix, Inc., No. 23-3768 (9th Cir. July 28, 2025) affirmed dismissal involving a show and its teaser. Attach the work. Argue that the use is expressive and not source-designating, cite Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) for the line, and be ready for the plaintiff's two prongs. In the Ninth Circuit, relevance need only be above zero, and an explicit misstatement must be directed at consumers. In the Sixth, Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) shows relevance can be a jury question. Rogers does not apply at all to a defendant using the identity as its own brand, as in Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024) and Vans, Inc. v. MSCHF Product Studio, Inc., 88 F.4th 125 (2d Cir. 2023), and Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) refused to apply it to commercial speech dressed as a documentary.

Weak recognition and conclusory pleading. Rely on Canas v. Brama 1 Inc., No. 1:23-cv-11762 (D. Mass. Aug. 12, 2025) (report and recommendation) and the strength discussion in Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023). Courts are split on how much can be decided before discovery, so do not count on this alone.

The identity as content or product. Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990), Oliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2001), and Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025) are your cases where the plaintiff's real grievance is that a recording or image was reused or imitated as content. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) helps with the reasoning, though it interprets "origin," which is not the only word in the statute.

Nominative fair use. Available in the Ninth Circuit's formulation under New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992) where you are truly referring to the person, using no more than needed, and not suggesting endorsement. Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002) is the win and Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996) is the warning. Other circuits place the burden and the factors differently. See Trademark Fair Use Analysis Checklist: A Practical Checklist.

No commercial injury. Argue Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) and cite Stayart v. Yahoo! Inc., 623 F.3d 436 (7th Cir. 2010) and Belmora LLC v. Bayer Consumer Care AG, 819 F.3d 697 (4th Cir. 2016), which applied Lexmark to a false association claim (the plaintiff there satisfied it), but acknowledge that Clemente Properties, Inc. v. Pierluisi-Urrutia, No. 23-1922 (1st Cir. Jan. 16, 2026) questions whether Lexmark governs subsection (A) at all.

State claims. Anti-SLAPP statutes can apply to state-law counts in some federal courts, but not generally to the federal claim, and Davis v. Electronic Arts Inc., 775 F.3d 1172 (9th Cir. 2015) is a reminder that a game maker lost on the state-law side after winning Brown. See Filing an Anti-SLAPP Motion: A Practical Guide.

Preserve everything. Plead every defense in the answer, develop each at summary judgment, and do not choose one theory to the exclusion of another. In Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015), the defendants' choice to argue likelihood of confusion and not Rogers cost them the First Amendment defense entirely. This may be the most expensive strategic error in the reported cases.

Step 6: Use discovery on recognition, injury, and scope (months 3 to 9)

Serve targeted requests under Fed. R. Civ. P. 26 for:

  • Every release and contract concerning the images at issue.
  • Tax returns and booking records for the relevant years. Electra noted that incomes rose or held steady, and that the clubs gained no additional profit.
  • All communications from anyone claiming to have seen the post, and any evidence of lost opportunities. An interrogatory asking for "any and all jobs and/or work lost" produced a telling identical non-answer in Souza.
  • Audience analytics, including geography.
  • Prior similar suits and the declarations given in them.

On your side, assemble ad spend, reach, impressions, sales in the period, and any evidence that the ad produced nothing. This is your damages defense.

Step 7: Attack the survey and the damages expert (months 6 to 12)

Use Fed. R. Evid. 702. Check for the flaws the Second Circuit found fatal: no control, lumped stimuli, no "don't know" option, too loose a definition of recognition, images that were not what consumers saw, and failure to cover all plaintiffs. Look at the wording of the sponsorship question. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015) shows that a survey may survive when it has a control, even with an imperfect answer category, so do not assume exclusion. Hire your own rebuttal expert early. For the motion itself, see Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide.

Then go after the damages opinion. Ask whether the rate history is real, whether it is comparable to a local social media post, and how a court could tie any revenue to the post.

Step 8: Settle cleanly

Many of these cases end in a release. Draft it to cover all uses, all related entities, past and future, and include removal obligations with a time limit and a specific no-admission clause.

If you use an offer of judgment under Fed. R. Civ. P. 68, write it so that nobody can misread it. In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), the defendants offered judgment "in the amount of $82,500.00, inclusive of interest, costs and attorneys' fees . . . on each of the Causes of Action." The plaintiffs accepted and demanded $660,000, reasoning that eight causes of action times $82,500 equals $660,000. The defendants had meant one payment. The Second Circuit held that there was no meeting of the minds, but only after years of expensive argument. Say "total" and say "for all plaintiffs and all claims." For agreements generally, see Drafting a Settlement Agreement and Release: A Practical Guide.

Part III: Clearing a use before it runs

The cheapest false endorsement case is the one you avoid with a few documents. Treat clearance as part of production, and give a named person the job. Usually that is the marketing lead, with a lawyer on call for anything unusual.

Sequence

1. Identify every person who can be identified. Faces, partial faces, bodies with tattoos, voices, names, nicknames, signature phrases, costumes, poses, and numbers on jerseys. Roberts v. Bliss, 229 F. Supp. 3d 240 (S.D.N.Y. 2017) dismissed a claim where the person was invisible, but White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) sent a robot to the jury because all the surrounding cues pointed to one person. Context can identify.

2. Classify the use. Paid ad, organic social post, event promotion, merchandise, or editorial or expressive work. A use in a film is treated differently from an Instagram post about a drink special.

3. Get consent that runs to you. Under Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), a release to someone else does not make you a beneficiary, and a broad assignment to one party does not give others a right to use the image. A stock license is the usual exception, if the stock house has a real model release and your use fits its terms. Read the sensitive-use restrictions, since many bar implied endorsement, adult businesses, and medical or political contexts. Save the license with the file name. Do not take a vendor's word for it. Require a copy or a written warranty with indemnity.

4. Treat "like" as a warning word. If a creative brief says "someone like" a named performer, "in the style of," or "a Waits-type voice," and especially if the person declined, stop. Allen, Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Waits, and Burck v. Mars, Inc., 571 F. Supp. 2d 446 (S.D.N.Y. 2008) were all built on intentional evocation. The musical director in Waits warned of legal trouble, and that evidence made a poor impression. A casting call for a generic gravelly voice is fine. A casting call for the closest match to someone who said no is not. Do not put a famous person's music in a pitch deck as the reference track unless you are prepared to explain it to a jury.

5. Handle AI as a separate clearance. If you use a synthetic voice or face:

  • Use a licensed library voice or an authorized replica, and keep the vendor's written statement of consent and scope.
  • Never prompt with a real person's name or upload a clip of a real person without a signed consent. Prompts and uploads are logged and discoverable.
  • Check the state law. In New York, a person who produces an ad and knows it contains a synthetic performer must make a conspicuous disclosure under N.Y. S.8420-A (2025). That statute covers digitally created performers who are not recognizable as any real person and exempts audio ads, so it does not reach a clone of a real person's voice. Tennessee's Tenn. Code Ann. § 47-25-1105 and New York's N.Y. Civ. Rights Law § 51 raise separate issues.
  • Do not rely on a disclosure as a substitute for consent. Under 16 C.F.R. Part 465, a testimonial that misrepresents that its speaker exists or used the product is a violation, and a small label elsewhere in the ad is unlikely to cure it.

The toolkit includes a rider. For more on the state replica statutes, read Name, Image, Likeness, and Digital Replicas: The ELVIS Act, the NO FAKES Act, and Deepfake Law.

6. Check the endorsement rules if the person really is endorsing. Under 16 C.F.R. Part 255, the endorsement must reflect honest views, the endorser must be a bona fide user if the ad says so, and material connections must be disclosed. The advertiser has a continuing obligation to have good reason to believe that the endorser still holds the views. An expired endorsement deal can turn a true endorsement into a false one. See Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide.

7. Keep a log. A one-line entry for each asset: person, source, release date, scope, expiration, and approver. That log is the difference between a five-minute response to a letter and a month of archaeology. A template is in the toolkit.

8. Sunset it. Take assets down when rights expire. Remember evergreen posts, pinned content, and agency reuse.

Cost and trade-offs

Choice Cost Risk it removes Residual risk
Hire and sign your own talent Modest day rate and buyout Nearly all, for the scope you paid for Use beyond the scope
Stock image with license Low Most, if the model release is real and use allowed Sensitive-use breach; lookalike coincidence
Licensed celebrity endorsement High False endorsement, and it generates real value Morals and FTC compliance
Lookalike or sound-alike Low to moderate Nothing, if the aim is to evoke the person Lanham and state claims, punitive damages, and a poor set of documents
Licensed AI voice library Low Most, if vendor consent is documented Vendor misrepresentation; check indemnity
Unlicensed web image, "we'll take it down if they complain" Zero up front Nothing Copyright, state claim, federal claim, and willfulness on a repeat

Three worked hypotheticals

Hypothetical one: the gym and the fitness instructor

Suppose Copperline Fitness, a two-location gym in Boise, posts a Reel using a clip of Tessa Marchetti teaching a class at a convention in Orlando. She has about 90,000 followers, a paid workout app, and sponsorships with two supplement brands. Her lawyer writes demanding $75,000.

Claimant's view. She should capture the Reel, export audience analytics, and find any Boise-area messages. Her analytics show 1,100 followers in Idaho. Her sponsorship contracts show $6,000 to $15,000 per campaign for national use. A survey is not worth it on these economics. She has a state claim under whichever law applies, a possible claim to the copyright if the convention video belongs to someone who will cooperate, and a plausible, if modest, Lanham Act claim if she can show that fitness-minded Boise customers know her. A realistic demand is a license-based figure, removal, and a written commitment.

Gym's view. Owner preserves, removes, tenders, and asks the employee where the clip came from. He should not argue that she has no case, because the state claim may be sound. He should say that the Reel ran for nine days with little boost spend, that revenue did not move, and that a local use is not a national campaign. He should ask whether the demand reflects a real licensing rate. A settlement in the range of a local license, with a mutual release, is the likely result.

The number $75,000 did not come from anywhere, and neither did the idea that the post is harmless. Both sides do better when they trade documents early.

Hypothetical two: the credit union's AI narrator

Suppose Northfork Credit Union in western Montana hires a small agency for radio spots. A copywriter asks a voice platform for something "like Gil Abernathy," a retired anchor who spent thirty years on the local news, and uploads two clips from the station's website. The spot runs for a month. Abernathy's friends call him to ask why he's selling car loans.

For Abernathy. Recognition is excellent in this market, and calls from friends are exactly the evidence that wins. The credit union is making commercial use, there is no expressive defense, and Waits is close on the facts. Lovo is distinguishable. This isn't a narrator's voice used as a neutral product. It trades on his identity, and the prompt proves it. Discovery should go straight to the platform account.

For Northfork. The credit union should preserve the platform logs, pull the spots, and tender both to its insurer and to the agency under the services agreement. It should find out whether the agency's contract had an IP warranty. It should not say "our vendor did it" as though that resolves anything, though it may matter for profits, damages, and any recourse against the agency. Injunctive relief is moot if the ad stops. The early settlement value here is a license fee multiplied by the fact that he had never endorsed anyone, and perhaps a public correction.

Hypothetical three: the indie game

Suppose a small studio ships Hardwood Kings, a retro basketball game with an unnamed character who has the height, number, headband, and signature shot of a retired Hall of Famer. Its store page says "Play as the legend himself, officially part of the Hardwood Kings roster."

The character alone is a Brown problem for the player. A likeness in a sports game has artistic relevance, and the plaintiff would need an explicit misstatement. The store page is that statement, or close to it. "Officially" is the kind of word that Rogers itself warned about in discussing "an authorized biography," and it is addressed to consumers, unlike the conference remark in Brown. The studio should fix the page immediately. A right of publicity claim is separate, and under Keller v. Electronic Arts Inc., 724 F.3d 1268 (9th Cir. 2013) and Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) a realistic depiction doing what made the player famous may not be transformative. A fix to the store page helps with one claim and not the other.

Common mistakes

Claimants

  • Assuming lack of permission is the claim. It is an element of state claims, and only background under the Lanham Act.
  • Waiting. New York's year passes quickly, and a post from two years ago usually means laches arguments and a thinner remedy.
  • Filing form declarations. Souza quotes them, and the point of quoting them was not flattering.
  • Commissioning an inexpensive survey. A survey that gets excluded costs you the money and the argument, and courts cite the exclusion in later cases involving the same expert.
  • Treating the lost fee as the only injury. Show reputational harm with facts if you are also pleading false advertising.
  • Sending a DMCA notice for a photo you don't own.
  • Overlooking your own contracts. A release, a talent agreement, or an agency's terms may allow more than you remember.
  • Pleading every theory under the sun. Some fee awards arise from weak companion claims, as in Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002).

Defendants

  • Deleting the post before capturing it.
  • Failing to notify the carrier because "this will go away" or the number is small.
  • Relying on a vendor's oral assurance. A contractor's belief that it had rights was not a license in Electra.
  • Treating the absence of a Lanham Act claim as the end of the matter. State claims survived in Electra, and they were often the more dangerous ones.
  • Arguing only confusion and forgetting Rogers, Dastar, or fair use until it is too late.
  • Calling something a parody when it is an ad. Burck and White both rejected that as an early exit.
  • Sending a Rule 68 offer without the word "total."
  • Assuming a disclaimer saves you. A tiny one failed as a matter of law in Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985).

Marketing teams

  • Searching for "hot model" images on the open web.
  • Assuming a photo bought from a photographer comes with the subject's permission.
  • Writing the celebrity's name into a creative brief, a mood board, or an AI prompt.
  • Continuing to run an endorsement after the deal ended or the endorser stopped using the product.

Timing and budget at a glance

These are general planning assumptions and will vary widely by market and counsel.

Phase Typical timing Main cost driver
Capture and assessment Days to two weeks Attorney time, modest
Demand and response Two to eight weeks Quality of evidence
Pleading motions Three to nine months after filing Briefing, attaching works
Discovery on recognition and injury Six to twelve months Analytics, third-party subpoenas
Surveys and rebuttal Three to six months, often overlapping discovery Experts, usually the largest single line
Summary judgment and Rule 702 Six months or more Second Circuit style cases often end here
Trial Variable Jury in the Ninth Circuit is a realistic possibility

A claimant in a small-audience dispute should compare this table with a realistic recovery before filing a federal action. A defendant should compare it with the cost of paying a fair license in the first month. If you are researching a specific circuit's cases, UpLaw (uplaw.us) is a good place to start.

This guide describes common steps and legal principles in general terms, and your facts, state, and contracts may call for a different path, so treat it as information and not as legal advice. If you are facing a claim or thinking about bringing one, an early review of the release, the limitations period, and the insurance policy will usually tell you more than any general guide can.

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