Summary. How to sell an identity carefully, and how to use one safely.
Two jobs, one vocabulary
"NIL work" describes two opposite tasks:
- Representing the person. Structuring, licensing, and enforcing an individual's rights in their own identity.
- Representing the user. Clearing third-party identities for advertising, merchandise, film, games, and datasets.
The vocabulary overlaps, the documents look similar, and the interests are directly opposed. Everything below is organized around which chair you are sitting in.
The legal backdrop is state law, and the variation matters: what attributes are protected, whether rights survive death, for how long, and what remedies exist all differ by jurisdiction. There is no general federal right, though 15 U.S.C. § 1125(a) supplies a federal false endorsement claim where a use suggests sponsorship, and a growing set of state statutes now address digital replicas specifically.
PART ONE: REPRESENTING THE INDIVIDUAL
Step 1 — Decide how the rights will be held
Personally. Simplest. Appropriate for individuals with occasional, modest licensing income.
Through a loan-out or holding entity. Common for individuals with meaningful and recurring licensing revenue. The entity holds or is granted the publicity rights and licenses them onward. Reasons: liability separation, contracting convenience, tax planning, and — importantly — succession, because an entity survives the individual and passes under the estate plan without a separate transfer of a personal right whose descendibility may be uncertain.
Considerations before forming one:
- Does the individual's state recognize assignment of publicity rights? Most permit licensing; assignment is more variable.
- Will existing agreements need to be assigned or restated?
- What are the tax consequences of the transfer and of the entity's ongoing operations?
- Who controls the entity if the individual becomes incapacitated?
Post-mortem planning starts with domicile. Determine whether the individual's state recognizes a descendible post-mortem right, its duration, and whether any registration or filing is required to preserve it. Some states condition post-mortem protection on lifetime commercial exploitation or on a post-death filing; missing a filing forfeits an asset that may be worth a great deal.
Step 2 — Define the grant precisely
The single most consequential drafting decision is what is being granted. Work through each element explicitly:
Attributes. Name, nickname, image, likeness, photograph, voice, signature, biographical facts, jersey number, distinctive catchphrase. List them; do not use "identity" alone.
Products and services. Define the category and enumerate what is excluded. This is where money is lost. "Beverages" swallows energy drinks, water, sports drinks, coffee, and alcohol. "Non-alcoholic isotonic sports beverages sold in retail channels" does not.
Media and channels. Print, digital display, social media, broadcast, streaming, outdoor, point of sale, packaging, in-arena, direct mail. Specify whether the licensee's social posts require separate approval and whether the individual is obligated to post.
Territory. Global grants are common and often unnecessary. A regional brand does not need worldwide rights.
Term. Including any sell-off period for inventory and any tail for materials already placed.
Exclusivity. Category exclusivity is the norm for endorsement deals. Define the category, define the carve-outs, and define what happens if the licensee expands into an adjacent category.
Digital replicas — as a separate grant. Do not allow replica rights to ride on "all media now known or hereafter devised." Address separately: whether a replica may be created; whether each use requires separate consent; compensation for creation and for use; whether the replica may be used after the term, after the relationship ends, or after death; whether the underlying data may be retained; and whether the material may be used to train models. A growing number of states require that consent to a digital replica be specific and informed, and some require independent representation.
Sublicensing. May the licensee extend rights to affiliates, retailers, bottlers, or channel partners? Often necessary; always worth defining.
Step 3 — Build the control mechanics
A grant without controls is a grant of everything.
Approval rights. Specify what requires approval (creative, product placement, copy referencing the individual, social posts), who exercises it, the review period, the form of approval, and what happens on silence. A deemed-approval clause after a defined period is standard and reasonable; without one, licensees will not agree to approval rights at all.
Usage limits. Number of executions, number of placements, or a defined campaign, rather than unlimited use of delivered assets.
Quality and context restrictions. No use in connection with specified categories; no alteration that materially changes the depiction; no compositing with other individuals without consent.
Morals clauses — both directions. The licensee will want the right to terminate if the individual's conduct brings disrepute. The individual should want a reciprocal right if the licensee's conduct does. Define the trigger objectively where possible (conviction, admission, regulatory finding) rather than by the licensee's subjective judgment, and address whether unpaid guarantees survive termination.
Termination and its consequences. What happens to materials in market, to inventory, to digital assets, and to any replica created during the term.
Audit rights where compensation includes royalties, with a threshold that shifts audit costs to the licensee if a material underpayment is found.
Step 4 — The college athletics overlay
NIL contracting for college athletes is ordinary endorsement work with a compliance layer, and the compliance layer is where inexperienced counsel create problems.
Before signing, confirm:
- The applicable state NIL statute and what it requires or prohibits.
- The institution's policy, including disclosure requirements, timing, and prohibited categories.
- Whether the deal involves a collective and, if so, how payment is characterized and whether the arrangement complies with applicable rules on inducements.
- Prohibited categories — commonly alcohol, tobacco and nicotine, cannabis, gambling and sports betting, firearms, and adult content — which vary by state and institution.
- Conflicts with institutional sponsors, which frequently hold category exclusivity that the athlete's deal would breach.
- Trademark use. An athlete generally may not license school marks, uniforms, or logos. Creative that includes them requires institutional permission.
Contract terms that matter especially here:
- Deliverables must be real. Payment for services actually rendered is defensible; payment untethered to deliverables invites scrutiny.
- Term should not outlive eligibility without addressing what happens on transfer, professional entry, or the end of the athlete's college career.
- Exclusivity should be narrow. Athletes sign many small deals; a broad category grant early forecloses later ones.
- Termination on eligibility loss should be mutual and should address earned but unpaid compensation.
Practical matters that are not legal but cause the most harm:
- Taxes. NIL income is self-employment income. Estimated payments are required; self-employment tax applies. Advise on this at signing, in writing.
- Financial aid. Income can affect need-based aid calculations.
- Immigration. International students on F-1 status face restrictions on unauthorized employment, and NIL activity can violate them with consequences out of all proportion to the money involved. This requires immigration counsel, not general advice.
- Agents and advisors. Representation is regulated inconsistently, and commission structures vary widely. Review the representation agreement as carefully as the endorsement deal.
PART TWO: REPRESENTING THE USER
Step 5 — Classify the use before anything else
Advertising or merchandising → consent required, without exception. Editorial, news, commentary, biography → generally privileged. Expressive works (film, games, books, art) → generally protected, but the applicable test varies by jurisdiction and outcomes differ. Internal or non-public use → usually low risk, but confirm no external distribution.
Adopt one rule as policy: no image of an identifiable person appears in advertising without a signed release on file. Grant no exceptions under deadline pressure. This single rule prevents the majority of publicity claims against ordinary businesses.
Step 6 — Draft releases that actually work
A usable release specifies:
- The person, by name.
- The material covered — specific images or recordings, or a defined session.
- Media: print, digital, social, broadcast, outdoor, packaging, point of sale.
- Territory and term.
- Whether alteration, cropping, and compositing are permitted.
- Whether the material may be sublicensed to affiliates, agencies, retailers, or channel partners.
- Whether digital replicas may be created and used — a separate opt-in, not implied by "all media."
- Whether the material may be used to train machine learning models — again, separate and explicit.
- What happens after employment or the engagement ends.
- Consideration, stated.
- Governing law, understanding it will not bind third parties.
For employees, an onboarding "media release" buried in a stack of forms is the most common failure point in corporate publicity compliance. Use a standalone release, obtained at the time of the shoot, describing the intended use.
For minors, obtain parental or guardian signature and check whether the jurisdiction requires court approval or trust arrangements for performer earnings.
Step 7 — Handle stock and third-party imagery correctly
A stock license conveys copyright permission. Whether it conveys a model release is a separate question, and stock licenses commonly restrict:
- Uses suggesting endorsement of a product or service
- Depictions in sensitive contexts (health conditions, financial distress, criminal activity, political messaging)
- Use on merchandise for resale
- Use in a manner that could be defamatory or unflattering
Read the restrictions. They are where the publicity risk lives, and the indemnity the agency provides typically excludes uses that violate them.
Step 8 — Deceased individuals
A separate workflow, in this order:
- Determine domicile at death. This usually governs whether a post-mortem right exists.
- Determine whether that jurisdiction recognizes post-mortem rights, and for how long.
- Determine whether any registration or filing was required and made.
- Identify the successor in interest. For well-known figures this is typically an estate or a licensing agency with published terms.
- License, or document why no license is required.
Do not assume that a long-deceased figure is free to use. Several states recognize post-mortem terms measured in many decades, and some enacted them retroactively.
Step 9 — Escalation rules
| Situation | Action |
|---|---|
| Identifiable person in advertising, release on file and current | Proceed |
| Release expired or scope uncertain | Do not use; obtain new release |
| Public figure plus a product | Escalate — false endorsement exposure under 15 U.S.C. § 1125(a) |
| Deceased individual | Full workflow before any use |
| Synthetic or replica depiction of a real person | Escalate; assume consent required |
| Crowd or background, not identifiable | Proceed with documentation |
| Editorial or documentary use | Proceed; document the editorial purpose |
PART THREE: ENFORCEMENT
Step 10 — Evaluate an unauthorized use
Before sending anything, answer:
- Is the person identifiable to the audience?
- Is the use commercial, or is it editorial or expressive?
- Which state's law applies? Domicile, place of use, or both.
- Does that state's law reach this attribute (voice, style, catchphrase)?
- Is there a release? Check the files before asserting there is none. The most common defense is a signed document the client forgot about.
- Is a false endorsement claim available under 15 U.S.C. § 1125(a)? It is federal, avoids the state patchwork, and carries remedies under 15 U.S.C. § 1116 and 15 U.S.C. § 1117.
- What is the realistic damages figure? Fair market value of the use, plus profits attributable, plus any statutory minimum.
- Is injunctive relief the real objective? In advertising disputes it usually is, because a campaign in market is a continuing harm and pulling it is expensive.
Step 11 — The demand letter
Keep it short, factual, and specific. It will be read by opposing counsel and possibly by a court.
Include: identification of the client and the protected attributes; identification of the specific uses with URLs, dates, and screenshots; the statement that no consent was given; the legal basis, cited to the applicable statute; the relief sought (cessation, removal, accounting, compensation); a reasonable deadline; and a preservation demand.
Avoid: overstating the law, claiming rights the jurisdiction does not recognize, demanding a number without a basis, and threatening remedies that are unavailable. A letter that overreaches invites a declaratory judgment action in a forum the recipient chooses.
Step 12 — Platform takedowns
For unauthorized use on platforms, most major services have reporting mechanisms for impersonation, unauthorized commercial use, and — increasingly — synthetic depictions. These are faster and cheaper than litigation and often sufficient.
Note that a copyright takedown under 17 U.S.C. § 512 is available only if the client owns copyright in the underlying material, which is frequently not the case: the photographer owns the photograph, not the subject. Filing a copyright notice for material you do not own carries its own exposure under § 512(f).
A worked example: the endorsement that went wrong twice
Marisol Quintanilla-Beit is a professional triathlete with a substantial following. In her third season she signs an endorsement deal with Ferrite Nutrition, a supplement company, negotiated by an agent without counsel review.
The deal as signed. $60,000 a year for three years. Grant: "the right to use Athlete's name, image, likeness, and biographical information in connection with the promotion of Company's products in all media now known or hereafter devised, throughout the world, in perpetuity." Exclusivity: "nutrition and wellness." Approval: none.
Three problems are already visible.
Problem one: perpetuity. The compensation runs three years. The grant runs forever. Ferrite may use the assets it captured in year one for the rest of its corporate life, without further payment.
Problem two: the category. "Nutrition and wellness" is enormous. Two years in, Marisol is offered $140,000 by a sports drink company. Ferrite asserts the deal breaches exclusivity. It is probably right. She declines the offer.
Problem three: no approval rights. Ferrite runs a campaign associating her with a weight-loss product line she has publicly criticized. She has no contractual basis to object.
Then it gets worse. In year three, Ferrite releases a video advertisement in which Marisol appears delivering a scripted testimonial in Spanish and Portuguese for the Latin American market. She never recorded it. Ferrite generated it from her existing footage, relying on "all media now known or hereafter devised."
The analysis.
Contract. Ferrite will argue the grant covers replica creation. That argument is not frivolous under the language as drafted, and it is exactly why replica rights should never be left to a media clause. Marisol will argue that a grant to use her "image and likeness" contemplates use of captured material, not synthesis of new performances, and that a statement she never made is not a "use" of her likeness but a fabrication of one. Several state digital replica statutes now resolve this by requiring specific, informed consent — which is worth checking against the effective date and the states involved.
Right of publicity. If the replica use exceeds the grant, it is an unconsented commercial use in every state where the advertisement ran.
False endorsement. Under 15 U.S.C. § 1125(a), the video represents that she endorses in words she never spoke. Remedies include injunctive relief under 15 U.S.C. § 1116 and damages and profits under 15 U.S.C. § 1117.
Consumer protection. A fabricated testimonial implicates state deceptive practices law and 15 U.S.C. § 45.
What her new counsel, Tobias Ngata, does.
- Reads the file first. Confirms there is no separate replica consent and no approval right.
- Sends a preservation and cessation demand identifying the specific advertisement, the markets, the run dates, and the legal bases, with a fourteen-day deadline. He does not name a number.
- Files nothing yet. The advertisement is running; the leverage is the cost of pulling it. He wants Ferrite to price that itself.
- Ferrite pulls the advertisement in nine days and offers to negotiate.
- Tobias uses the leverage to restructure the whole agreement, not just to settle the replica claim.
The restructured deal.
- Term of grant matched to the payment term, with a six-month sell-off for materials already in market.
- Category narrowed to "powdered and capsule dietary supplements sold through retail and direct-to-consumer channels," with beverages, apparel, equipment, and services expressly excluded.
- Approval rights over all creative, with a five-business-day review period and deemed approval on silence.
- A separate digital replica article: no replica may be created without a signed, use-specific consent; each use requires separate approval; creation and each use are separately compensated; no replica may be used after the term; all underlying data is deleted at termination and certified; no use of any material to train models.
- Mutual morals clauses with objective triggers.
- Payment of the disputed replica use at a negotiated figure.
What it cost Marisol to learn this. Two years of a foreclosed $140,000 opportunity, an association she did not want, and legal fees. What it would have cost to prevent: about four hours of contract review at signing.
The user's side of the same story
Ferrite's position deserves attention too, because its counsel made a specific and common error.
Ferrite's marketing team asked in-house counsel whether the existing grant allowed a synthetic testimonial. Counsel read the clause — "all media now known or hereafter devised" — and said yes.
Why that was wrong, or at least reckless. The clause allocates media, not content. A grant to use a likeness in all media addresses where captured material may appear. Generating a new performance the person never gave is a different act. The distinction was not obvious when the clause was drafted, which is precisely the point: contract language written before a technology existed should not be relied on to authorize it.
What Ferrite's counsel should have done:
- Treated the question as novel and escalated rather than answering from the clause.
- Checked state digital replica statutes for the markets where the advertisement would run, and their effective dates.
- Assessed the false endorsement overlay — a fabricated testimonial is a representation about what a person said, which is a classic confusion case.
- Priced the alternative. A consent amendment with additional compensation would have cost a fraction of what pulling the campaign cost.
- Advised on the consumer protection dimension, which exists independently of anything Marisol does.
The general rule for users: when a proposed use of someone's identity is one the contract's drafters could not have contemplated, the contract does not authorize it. Get consent.
A working sequence for a new engagement
| Step | Individual side | User side |
|---|---|---|
| 1 | Determine domicile and applicable law | Classify the use |
| 2 | Decide holding structure | Identify every person depicted |
| 3 | Inventory existing agreements and conflicts | Check for releases; verify scope and expiry |
| 4 | Define the grant precisely | Check stock license restrictions |
| 5 | Build approval and control mechanics | Determine domicile for deceased individuals |
| 6 | Address digital replicas separately | Escalate per the matrix |
| 7 | Add morals clauses both directions | Document the clearance decision |
| 8 | Address compliance overlay (NIL) | Calendar release expirations |
| 9 | Address tax and, if applicable, immigration | Confirm no endorsement implication |
| 10 | Build the post-mortem plan | Retain the file |
Mistakes that recur
Granting a category that is broader than intended. "Beverages" instead of "isotonic sports drinks."
Letting digital replica rights ride on a boilerplate media clause. Separate grant, separate consent, separate compensation.
Approval rights with no deadline. Unusable in practice; licensees will not perform.
Onboarding media releases used for paid advertising. The scope will not support it.
Assuming a stock license includes a model release. It often does not, and the restrictions matter more than the grant.
Treating a long-deceased figure as public domain. Check the domicile.
Ignoring the tax and immigration consequences of NIL income. These cause more actual harm to athletes than contract terms do.
Sending a demand letter that overstates the law. It converts a strong position into a declaratory judgment defense in someone else's forum.
Valuing a publicity license
Both sides of a negotiation benefit from a defensible number, and "what did the last person get" is not one.
Comparable transactions. The primary method. Comparability requires matching on: the individual's reach and engagement in the relevant audience, the category, exclusivity, term, territory, media mix, and deliverables. A deal with three social posts a month is not comparable to a pure image license, and treating them as equivalent produces bad numbers in both directions.
Reach-based benchmarks. Cost per thousand impressions or cost per engagement, applied to the individual's audience, gives a floor for social-heavy deals. It systematically undervalues individuals whose endorsement carries credibility disproportionate to reach — a respected specialist with a small, precisely targeted audience.
Relief from royalty. What the licensee would otherwise pay for equivalent brand association. Useful for merchandise and packaging deals.
Incremental contribution. Where data exists, the measurable lift attributable to the association. Rare outside large advertisers, but decisive when available.
Adjustments that matter:
| Factor | Direction | Notes |
|---|---|---|
| Exclusivity | Increases | Broader category, larger premium |
| Term | Increases with length | Perpetual grants should carry a large multiple, not a small one |
| Territory | Increases | Often over-purchased; regional brands rarely need global |
| Approval rights | Decreases the fee | Licensee pays less for constrained use |
| Deliverables (appearances, posts) | Increases | Price separately from the license |
| Digital replica rights | Increases substantially | Price creation and use separately |
| Morals clause exposure | Varies | Individuals with elevated risk profiles are discounted |
| Category risk | Varies | Regulated categories carry premiums and reputational cost |
The perpetuity multiple deserves emphasis. A three-year grant and a perpetual grant are not close in value, and licensees frequently obtain perpetual grants for term-length prices simply because nobody priced the difference. When representing the individual, either match the grant to the payment term or price the tail explicitly.
Enforcement economics
Deciding whether to pursue an unauthorized use requires an honest number, and clients often want to litigate cases that are not worth litigating.
Estimate the licensing value of the use. Comparable deals for that medium, duration, and reach. This is the core of actual damages and is usually modest.
Estimate profits attributable. Available in many jurisdictions with a burden-shifting structure: the plaintiff proves gross revenue connected to the use; the defendant proves costs and the portion attributable to other factors. Attribution is hard, and defendants win most of the allocation fight.
Check for statutory damages. Several state statutes provide minimums that make otherwise uneconomic claims viable and that drive settlement.
Check for fee shifting. Some statutes provide fees, sometimes to any prevailing party — which cuts both ways and should temper an aggressive posture.
Value the injunction. In advertising disputes this is usually the real asset. A campaign already produced and placed is expensive to pull, and that cost, not the damages number, is what settles the case.
Consider aggregation. Individual publicity claims are small. Claims on behalf of many individuals whose images were used in a product, database, or platform are not, and this is where the significant litigation in the field occurs.
Consider the counter-risk. A demand letter that overstates the law invites a declaratory judgment action in a forum the recipient selects, under law less favorable than yours. Assert only what the applicable jurisdiction actually provides.
Running a rights management function at scale
Organizations that use identity rights routinely — advertisers, publishers, studios, retailers, sports properties — need infrastructure rather than case-by-case judgment.
A rights inventory. One system of record listing every person depicted in every asset the organization uses, with: the asset identifier, the person, the release reference, the granted media, the territory, the term, the expiry date, sublicensing permissions, replica permissions, and the person who cleared it. Without this, expired releases get reused, which is the second most common source of claims after having no release at all.
Expiry management. Automated flags at ninety and thirty days before any release expires, routed to the asset owner, with a default rule that expired assets are pulled from the library rather than merely flagged.
Asset-level metadata. Rights information should travel with the asset in the digital asset management system, not live in a separate spreadsheet. A creative team selecting an image should see the permitted media and territory in the same interface where they select it.
A single release template with defined variants. Employee, talent, customer, event attendee, and minor. Variants differ in term, media, and compensation, not in structure. Ad hoc releases drafted by regional teams are a reliable source of scope disputes.
Vendor flow-down. Agencies, production companies, and photographers must be contractually required to obtain releases on the organization's form, deliver them with the assets, and represent that all necessary rights have been secured. Include an indemnity and confirm the vendor carries insurance that would respond.
Territory discipline. Where campaigns run internationally, remember that many jurisdictions treat image rights as personality rights with different rules — some non-assignable, some requiring specific written consent for each use, some with moral-rights overlays. Clearing to United States standards is not sufficient for a global campaign.
A quarterly audit. Sample twenty assets in active use and trace each to a current release. The failure rate on a first audit is routinely higher than management expects, and it is the most persuasive argument for funding the function properly.
An incident path. When a claim arrives: preserve, pull the use pending review, locate the release, determine the applicable law, and escalate. Pulling first and analyzing second is usually correct, because continuing a use after notice converts a negligent violation into a knowing one, with punitive exposure in several jurisdictions.
Special contexts
Film and television. Depicting real people in dramatized works is generally protected expression, but production practice is conservative because errors-and-omissions insurers drive it. Expect requirements for: a clearance report identifying every real person depicted; life story rights agreements for principal subjects; releases from participants in documentary footage; and legal review of the script for defamation and false light as well as publicity. Where a person is depicted unfavorably, the defamation analysis usually matters more than the publicity analysis.
Music. Sampling a voice raises copyright in the recording and the composition; imitating a voice raises publicity. The soundalike cases establish that a deliberate imitation designed to evoke a specific artist who declined to license can be actionable even though no recording was copied. Synthetic voice models trained on an artist's recordings raise both, plus contract questions under the recording agreement.
Video games and virtual worlds. Realistic depiction of real people is the highest-risk category because the applicable test varies by circuit and the outcomes differ. Studios generally license — through players' associations, individual agreements, or licensing agents — rather than litigate. Where a game permits user-created content depicting real people, the platform's own exposure depends heavily on its notice and removal practices.
Advertising in regulated categories. Endorsements in health, financial services, and dietary supplements carry an additional layer: the endorser's statements must reflect honest opinions and, where the endorser is presented as an expert, must be supported by an actual evaluation. The Federal Trade Commission's endorsement guides at 16 C.F.R. Part 255 require disclosure of material connections and impose obligations on advertisers to monitor endorsers.
Deceased performers in new productions. Reviving a performance requires: rights from the estate or successor under the applicable post-mortem regime; rights in any underlying copyrighted footage; and, increasingly, compliance with digital replica statutes that impose specific consent requirements for deceased performers. Collective bargaining agreements in the entertainment industry now address this directly, and the union's position may control even where the estate consents.
Political and issue advertising. Using a person's identity in political speech receives the strongest First Amendment protection and the weakest publicity claim. Several states have nonetheless enacted disclosure requirements for synthetic election communications, and those obligations attach regardless of whether a publicity claim would lie.
Negotiating checklist for the individual's side
When time is short and a deal is on the table, these are the eight terms worth fighting for, in order of how often they cause later harm.
- Match the grant term to the payment term. If the licensee wants perpetuity, price it as a separate asset sale, not as a drafting default.
- Narrow the category and enumerate exclusions. Write out what is excluded; do not rely on the category name to imply it.
- Carve out digital replicas entirely unless separately consented, separately compensated, and separately terminable.
- Get approval rights with workable mechanics — defined scope, a short review period, deemed approval on silence.
- Make the morals clause mutual and objective. Termination on the licensee's subjective judgment of disrepute is an unlimited termination right.
- Address post-term use. Materials in market, inventory, digital assets, archived content, and anything derived from the individual's likeness.
- Prohibit model training on any material delivered under the agreement, and require certified deletion of underlying data at termination.
- Preserve earned compensation on termination. Unpaid guarantees for periods already performed should survive.
Two terms worth conceding readily, because they cost little and buy goodwill: reasonable exclusivity within a genuinely narrow category, and reasonable deliverable obligations with defined counts and lead times.
One term worth walking away over: an unlimited, perpetual, worldwide grant across all attributes with no approval rights, at a term-length price. That is not a license; it is a sale of the asset, and it should be priced as one or declined.
Frequently asked questions
How do we handle an employee who leaves after appearing in marketing? It depends on the release. A release with a defined term that has not expired generally survives departure; a release limited to "the period of employment" does not. Best practice is to address it expressly at signing and, where continued use is intended, to obtain a perpetual grant supported by separate consideration rather than relying on the employment relationship.
Is a verbal or implied consent ever sufficient? Some state statutes require written consent, which ends the question. Where writing is not required, implied consent can exist — a person who poses for a photograph knowing it will appear in an advertisement has consented to that — but the scope of implied consent is narrow and contested. Get it in writing.
What if a person's image appears in a search result or an aggregation product? Indexing and aggregation are generally treated as informational rather than commercial exploitation of identity, though the analysis has been litigated where the aggregator used images to promote paid subscriptions. Products that use a person's likeness to advertise the product itself, as distinct from displaying it as content, face a much harder position.
Can an individual assign their publicity rights outright? In most states, yes, and holding them in an entity is common. A few jurisdictions treat the right as more personal and permit licensing rather than full assignment.
How long should a release last? As long as the campaign plus a sell-off period, or perpetual if the consideration supports it. Perpetual grants are common for stock and employee imagery; term-limited grants are common for talent.
What if a person revokes consent? A signed release supported by consideration is a contract and generally cannot be unilaterally revoked. Whether specific performance or damages is the remedy depends on the terms.
Does a company need a release to name a customer in a case study? Yes if the use is promotional and the person is identifiable, and the company should also address confidentiality and any approval right over the description.
Can an athlete license their school's logo? No. School marks belong to the institution, and creative including uniforms, logos, or facilities requires institutional permission.
What about a person's likeness in a training dataset? Address it explicitly. General publicity law may or may not reach dataset inclusion, but state digital replica statutes increasingly do, and the contract layer — site terms, dataset licenses — operates independently. Provenance records maintained at collection time are the practical protection.
Is a name alone protectable? Yes, where the use identifies the specific person and is commercial. Common names create identifiability problems; distinctive ones do not.
Related documents
- The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself
- Right of Publicity Clearance Checklist: A Practical Checklist
- Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands
- Conducting a Fair Use Analysis: A Practical Guide
- Trademark Licensing and Quality Control: How Naked Licensing Kills a Brand
- Advertising and Consumer Protection Compliance Toolkit
- Business Immigration Toolkit: Visas, PERM, and I-9 Compliance
- Estate Planning for Business Owners: A Practical Guide
