False Endorsement Clearance and Claim Checklist: A Practical Checklist

How to use this checklist

Print this and work top to bottom. Phases 0 through 5 are for anyone about to use a person's name, face, voice, or persona, and can be handed to a marketing lead. Phase 6 and Phase 7 are for a business that has received a complaint. Phase 8 is for the person whose identity was used, and Phase 9 covers litigation tasks for both. Items with an authority are tied to a statute, rule, or case you can pull. Notes explain why a task matters, and red flags tell you when to stop and call counsel.

The checklist does not replace the analysis. For the doctrine, read False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin. For the sequence with trade-offs and sample language, use Bringing or Defending a False Endorsement Claim: A Practical Guide. Forms mentioned below are in False Endorsement Toolkit: Talent Releases, Clearance Logs, and Demand Letters.

Phase 0: Classify the use

• Name the owner of clearance for this campaign. No authority requires this, but Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021) shows what happens when each party assumes another has the rights. Note: The person named signs the log entry in Phase 5. If nobody will sign, the asset does not run.
• State what the use is, in one sentence. Paid ad, organic social post, event promotion, packaging, merchandise, film, show, song, or game. 15 U.S.C. § 1125(a)(1)(A) reaches uses "on or in connection with any goods or services."
• Sort the use by the job the identity is doing. Brand or source signal, promotion of something else, content within an expressive work, or accurate reference. Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023) draws the line between use as a mark and other expressive uses. Note: An ordinary ad is outside Rogers. A title, scene, or game may be inside it. A use as your own brand name never is.
• List every place the use will run, including states, platforms, and whether it can be boosted or geo-targeted. State statutes differ, and N.Y. Civ. Rights Law § 51 applies to use "within this state."
• Note the audience in plain words. "Bar patrons aged 21 to 35 in Reno" or "collegiate wrestling fans." Courts measure recognition among the target group. White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992); Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001).

Red flag: The brief uses the words "like," "in the style of," or a person's name, and nobody has signed that person. Stop here and go to Phase 3.

Phase 1: Identify everyone who can be identified

• Review every frame, image, and audio track for identifiable people, including partial faces, tattoos, voices, jerseys, and crowd shots. Wendt v. Host International, Inc., 125 F.3d 806 (9th Cir. 1997) held that a court cannot resolve likeness simply by comparing faces.
• Check surrounding cues that point to one person. Costume, set, pose, catchphrase, or a board game show set. White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992) reached a jury with a robot because everything around it identified her. Note: Burck v. Mars, Inc., 571 F. Supp. 2d 446 (S.D.N.Y. 2008) let a claim proceed against a cartoon M&M dressed as a street performer.
• Check names, nicknames, and former names, including in text and metadata. A former name still counts. Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996).
• Check hashtags, tags, alt text, and captions. These can name a person who is not named in the visible ad, and can supply the identification a photo lacks. In Canas v. Brama 1 Inc., No. 1:23-cv-11762 (D. Mass. Aug. 12, 2025) (report and recommendation), the absence of tags helped the defendants.
• Identify any deceased person whose identity appears. The Lanham Act claim can survive through successors if confusion is shown. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015). State terms differ. See Cal. Civ. Code § 3344.1 and N.Y. Civ. Rights Law § 50-f. Note: For post-mortem specifics, use Post-Mortem Publicity Rights Clearance Checklist: A Practical Checklist.
• Record the result for each person: who, where in the asset, source of the material, and how recognizable they are to the audience in Phase 0.

Phase 2: Paper consent that runs to you

• Get signed written consent from each identifiable person, naming your company or expressly covering it. N.Y. Civ. Rights Law § 51 requires written consent for advertising or trade uses. Cal. Civ. Code § 3344 requires prior consent. Note: A release given to the photographer or a catalog company does not automatically protect you. Under Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), clubs and contractors who were not parties or intended beneficiaries could not rely on broad releases, and written consent in favor of one party did not permit others to use the image.
• Match the consent's scope to the use. Medium, territory, term, category of goods, and paid or organic. New York law treats a use beyond the limits of a consent as a use without consent. Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021).
• Decide whether you need an endorsement grant or only an appearance grant, and say so. A clause in Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) allowed reuse "provided, however, such use does not constitute an endorsement of any product or service," and it did not bar the claim if the use was an endorsement.
• Get a parent's or guardian's signature for a minor. Cal. Civ. Code § 3344 says so expressly.
• For stock assets, read the license and confirm a model release exists. Save the license with the file. Check sensitive-use limits for adult businesses, health claims, politics, and implied endorsement.
• Do not accept "we have the rights" from a vendor. In Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021), the contractor could not produce any license from its supposed source, and the clubs never asked for written confirmation. Get a copy of the license or a written warranty and indemnity.
• Clear copyright separately. A photographer's permission does not cover the subject's identity, and the subject's permission does not cover the photographer's copyright. Note: Image Copyright Demand Letters: How Photo Licensing Enforcement Works and What Claims Are Really Worth explains the copyright side.
• Clear the music separately and think about the performer. Licensing a recording from all known owners may defeat a Lanham Act claim, as in Oliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2001), while still leaving a state claim. Using a recording as a suggestion that the band endorses you is another matter. Beastie Boys v. Monster Energy Co., 66 F. Supp. 3d 424 (S.D.N.Y. 2014).

Red flag: You are relying on a release signed years ago for a different client in a different category. Treat that as no release until a lawyer reads it.

Phase 3: Sound-alikes, lookalikes, and AI

• Ask whether the person being evoked has been approached or has refused. A refusal followed by imitation was the core of Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).
• Pull any reference tracks, mood boards, or casting notes that name a real person. These documents become evidence of intent. Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992).
• If using a lookalike or impersonator for an authorized purpose, require a bold, unequivocal statement that the person is not involved. Allen v. National Video, Inc., 610 F. Supp. 612 (S.D.N.Y. 1985) held a tiny disclaimer insufficient as a matter of law. Note: A disclaimer may help on confusion. It will not help with a state claim that turns on consent.
• For synthetic voice or likeness, confirm that the vendor has documented consent from the source person, covering your use. Get it in writing. Tenn. Code Ann. § 47-25-1105 addresses voice and tools, and N.Y. Civ. Rights Law § 51 covers voice.
• Prohibit prompting or uploading with a real person's name, recording, or image without a signed rider. Prompts and voice IDs are discoverable under Fed. R. Civ. P. 26.
• Do not treat a non-famous voice as free. Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025) dismissed the Lanham Act counts but let New York Civil Rights Law, General Business Law, contract, and one copyright claim proceed.
• Check whether the ad contains a "synthetic performer" under New York's disclosure law, and disclose if so. N.Y. S.8420-A (2025). Note: The statute covers AI-created performers who are not recognizable as any real person, and it exempts audio ads. Penalties are $1,000 for a first violation and $5,000 for later ones. Confirm the current text and any other state's parallel law for the markets you are buying.
• Check the status of federal law before launch. The NO FAKES Act, S. 4591 and H.R. 8915, cleared the Senate Judiciary Committee in June 2026 but has not been enacted. Confirm its status on Congress.gov.
• Keep the generation record: tool, version, voice or model ID, prompts, source files, operator, and date. Note: If there is no consent on file, do not generate.

Red flag: Anyone proposes cloning a person who is dead, retired, or "probably won't notice." Those facts help neither liability nor punitive exposure. Send it to counsel.

Phase 4: Endorsement and consumer rules

• Confirm that a real endorser's statements reflect honest opinion and actual experience. 16 C.F.R. § 255.1(a).
• If the ad says the endorser uses the product, confirm bona fide use at the time, and that you have good reason to believe it continues. 16 C.F.R. § 255.1(b) and (c).
• Do not pair a testimonial with the image of someone other than the endorser if it misrepresents a material attribute. 16 C.F.R. § 255.1(g).
• Screen for fake celebrity testimonials and AI-generated testimonials. 16 C.F.R. § 465.2, reaches writing, creating, selling, and disseminating testimonials that misrepresent that the testimonialist exists or used the product. For dissemination about your own products, the test is knew or should have known.
• Disclose material connections with paid endorsers. 16 C.F.R. Part 255; see Sponsorship, Endorsement, and Influencer Agreements: A Practical Guide.
• Do not impersonate a government agency or business. 16 C.F.R. Part 461. The FTC's 2024 proposal to extend this to individuals has not been finalized, so check current status.
• Do not count on the FTC rules as your only limit, or as a private right for the person depicted. The Section 5 framework in 15 U.S.C. § 45 is enforced by the agency.

Phase 5: Launch and monitor

• Complete the clearance log entry before upload. Person, source, release date, scope, expiration, approver.
• Calendar expiry dates and takedown tasks. Ongoing use after a right lapses or after notice is what willfulness looks like. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015).
• Keep credentials and control of every account in the company's hands. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), a post stayed live for years because of password problems with a vendor-run account.
• Record spend, reach, and targeting for paid uses. You will want these on the day a claim arrives, because they drive the 15 U.S.C. § 1117(a) analysis.
• Require approval before an agency or franchisee reuses assets elsewhere.
• Review policy coverage annually for entertainment and marketing exclusions. Princeton Excess & Surplus Lines Insurance Co. v. A.H.D. Houston, Inc., 84 F.4th 274 (5th Cir. 2023); Nobriga v. Clear Blue Specialty Insurance Co., No. 3:24-cv-01980 (D. Conn. July 10, 2026).

Phase 6: A complaint arrives (first seven days)

• Log the date and how it arrived, and route it to one person.
• Issue a litigation hold to the company and vendors. Fed. R. Civ. P. 37(e). See Litigation Hold and Evidence Preservation Checklist: A Practical Checklist.
• Capture every challenged use, with metrics, before removal. Include comments, spend, targeting, and landing pages.
• Remove or pause the use unless counsel decides otherwise. Check reposts, pinned posts, third-party listings, and boosted versions.
• Notify insurers under every potentially responsive policy. Coverage B may or may not respond. Princeton Excess & Surplus Lines Insurance Co. v. A.H.D. Houston, Inc., 84 F.4th 274 (5th Cir. 2023); Nobriga v. Clear Blue Specialty Insurance Co., No. 3:24-cv-01980 (D. Conn. July 10, 2026). Note: Contrary rulings exist, so don't assume the exclusion ends the matter. Princeton Excess & Surplus Lines Insurance Co. v. R.I. Cranston Entertainment Inc., 725 F. Supp. 3d 184 (D.R.I. 2024).
• Tender to the agency, freelancer, stock house, or AI vendor, citing the contract's warranty and indemnity. In Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023), the club impleaded its vendor.
• Do not contact the claimant directly, and do not post about the dispute. Route all communications through counsel. Fed. R. Evid. 408 protects compromise negotiations only within its limits.
• Interview the people who chose the asset, through counsel. Who picked it, from where, and did anyone ask for this person by name? Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021); Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023).

Red flag: The letter comes from a representative of a recognized name, or the asset was chosen because of who the person is. That removes the recognition defense and pushes the case toward intent. Escalate.

Phase 7: Evaluate and respond

• Test recognition among your audience. Strength means recognition among those consumers in the Second Circuit. Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021); Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023); Gibson v. SCE Group, Inc., 391 F. Supp. 3d 228 (S.D.N.Y. 2019).
• Ask whether the ad implies approval, or something else. A false impression that a model works at the club may be a different problem from endorsement. Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023).
• Screen for an expressive-work defense. Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); Hara v. Netflix, Inc., No. 23-3768 (9th Cir. July 28, 2025); Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013); but not for use as your own brand, Punchbowl, Inc. v. AJ Press, LLC, 90 F.4th 1022 (9th Cir. 2024), or for commercial speech, Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
• Screen for nominative fair use. New Kids on the Block v. News America Publishing, Inc., 971 F.2d 302 (9th Cir. 1992); Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002); Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996). See Trademark Fair Use Analysis Checklist: A Practical Checklist.
• Screen for "content, not source." Pirone v. MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990); Oliveira v. Frito-Lay, Inc., 251 F.3d 56 (2d Cir. 2001); Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003); Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025).
• Review all state claims separately, including limitations. One year in New York, Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023). Check every state where the use ran.
• Estimate exposure: license-value comparison, realistic profits, and fees. 15 U.S.C. § 1117(a); Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020); Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015).
• Decide on the response. Options include removal with no comment, removal with a request for evidence, and a license offer. Use the toolkit's response letter and Responding to a Cease and Desist Letter: A Practical Guide.
• Paper any deal properly: all uses, all related entities, removal date, no admission. If using Fed. R. Civ. P. 68, say "total" and specify all plaintiffs and claims. Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021) spent years on that ambiguity.

Phase 8: The claimant's first steps

• Capture everything now. URL, date, account, caption, comments, ad library entry, and video. Fed. R. Evid. 901.
• Calendar every state limitations date on day one, using the earliest publication date. Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023) applied New York's one-year single publication rule.
• Gather every release or contract you may have signed for the image. Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
• Identify who owns the photo's copyright. A takedown under 17 U.S.C. § 512(c)(3) must come from the owner or someone authorized by the owner.
• Write down honest answers on recognition among the defendant's customers. Use data in the evidence plan. Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023); Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001); Hauf v. Life Extension Foundation, 547 F. Supp. 2d 771 (W.D. Mich. 2008).
• Save every message from anyone who thought you were affiliated. Wendt v. Host International, Inc., 125 F.3d 806 (9th Cir. 1997) credited such evidence.
• Document commercial injury. Licensing history, rates, lost offers, and timing. Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014); Clemente Properties, Inc. v. Pierluisi-Urrutia, No. 23-1922 (1st Cir. Jan. 16, 2026).
• Do not assume the federal claim is your best claim. If recognition is low, the state claim or a contract claim may be stronger. Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023) says as much.
• Do not post accusations. Send a letter that can be a court exhibit, after a lawyer checks it against Fed. R. Civ. P. 11. See Drafting a Trademark Cease-and-Desist Letter Checklist: A Practical Checklist.
• Consider a platform complaint and early injunction if the use is recent. 15 U.S.C. § 1116(a); Fed. R. Civ. P. 65. See Trademark Preliminary Injunction Checklist: A Practical Checklist.

Red flag: Your best theory is that you should have been paid. That alone failed a false advertising claim in Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023). Pair it with reputation evidence or look at the state statute.

Phase 9: Litigation tasks for both sides

Pleadings

• Claimant: plead facts on recognition, confusion, and injury. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009); Canas v. Brama 1 Inc., No. 1:23-cv-11762 (D. Mass. Aug. 12, 2025) (report and recommendation).
• Claimant: if the identity is a voice sold as a service, plead secondary meaning and source function. Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025).
• Defendant: file a Rule 12 motion if a defense is apparent, and attach the work. Fed. R. Civ. P. 12; Brown v. Electronic Arts, Inc., 724 F.3d 1235 (9th Cir. 2013).
• Defendant: plead every affirmative defense and develop each one later. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015) treated Rogers, Dastar, and functionality as waived.

Evidence

• Serve requests aimed at releases, income, audience data, and injury. Fed. R. Civ. P. 26; Electra v. 59 Murray Enterprises, Inc., 987 F.3d 233 (2d Cir. 2021); Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023).
• Preserve generation logs and vendor records in AI cases. Fed. R. Civ. P. 37(e); Lehrman v. Lovo, Inc., No. 24-CV-3770 (JPO) (S.D.N.Y. July 10, 2025).
• Survey proponent: confirm universe, control, separate stimuli, "don't know" option, and instruction not to guess. Fed. R. Evid. 702; Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023); Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015).
• Survey opponent: map each flaw to the same factors and hire a rebuttal expert. See Daubert Challenges to Consumer Survey Experts in Trademark Litigation: A Practical Guide.

Summary judgment and trial

• Address every confusion factor unless you can explain why one does not apply. Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023) warns district courts about this, and Wendt v. Host International, Inc., 125 F.3d 806 (9th Cir. 1997) reversed a ruling that stopped at similarity.
• Know your circuit's framing. Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961); Downing v. Abercrombie & Fitch, 265 F.3d 994 (9th Cir. 2001); Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008).
• Separate jury issues from court issues. Fifty-Six Hope Road Music, Ltd. v. A.V.E.L.A., Inc., 778 F.3d 1059 (9th Cir. 2015) held that profits go to the court. See Bench Trial vs. Jury Trial Issues in Trademark Litigation: A Practical Guide.
• Avoid double recovery. Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) vacated $100,000 in duplicative Lanham Act damages.
• Prepare the fee position for either outcome. 15 U.S.C. § 1117(a); Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545 (2014); Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002); see Lanham Act Attorney's Fees Under 15 U.S.C. § 1117(a): A Practical Guide.
• Check individual liability allegations against the proof. Edmondson v. Velvet Lifestyles, LLC, 43 F.4th 1153 (11th Cir. 2022).
• Watch supplemental jurisdiction and the tolling period. 28 U.S.C. § 1367(d); Souza v. Exotic Island Enterprises, Inc., 68 F.4th 99 (2d Cir. 2023).

This checklist is a general working aid and does not account for your particular facts, contracts, or jurisdiction, so have a lawyer review anything with real money or a known name attached.

Related Documents

Related Articles

• False Endorsement Under the Lanham Act: Celebrities, Models, Sound-Alikes, and the Right of Publicity's Federal Cousin: the doctrine behind every box here.
• People-Search Sites and the Right of Publicity: Yearbooks, Data Brokers, and the Persona Class Actions: a parallel identity problem involving data, not ads.

Related Guides

• Bringing or Defending a False Endorsement Claim: A Practical Guide: the same steps with timing, sample language, and trade-offs.
• Clearing Expressive Works Against Right of Publicity Claims: A Practical Guide: for films, games, books, and shows.

Related Checklists

• Right of Publicity Clearance Checklist: A Practical Checklist: the state-law clearance list.
• Trademark Likelihood-of-Confusion Analysis: A Practical Checklist: the general confusion factors.
• Copyright Preemption Analysis Checklist: A Practical Checklist: when a state claim collides with copyright.

Related Toolkits

• False Endorsement Toolkit: Talent Releases, Clearance Logs, and Demand Letters: the release, log, rider, letters, and evidence plan.
• Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements: endorsement disclosures alongside other marketing rules.