Right of Publicity Clearance Checklist: A Practical Checklist

Summary. Clear a campaign, negotiate a grant, or evaluate a claim.

Phase 1 — Classify the use

• Is the use advertising or merchandising? → consent required, no exceptions.
• Is it editorial, news, commentary, or biography? → generally privileged; document the editorial purpose.
• Is it an expressive work (film, game, book, art)? → generally protected, but the test varies by jurisdiction; escalate for realistic depictions.
• Is it internal only? → confirm no external distribution, including social posts by employees.
• Is the use promotional of a protected work (an ad for the documentary)? → generally within the privilege if drawn from the work.

Phase 2 — Identify who appears

• List every person visible or audible in the asset.
• For each: is the person identifiable to the audience? Face, body, voice, signature, distinctive attribute.
• Flag anyone in the foreground or presented as endorsing.
• Flag any public figure — false endorsement exposure under 15 U.S.C. § 1125(a) raises the stakes considerably.
• Flag any deceased individual for the separate workflow below.
• Flag any minor.
• Confirm that background or crowd appearances are genuinely unidentifiable.

Phase 3 — Verify the release

For each identifiable person:

• A signed release exists and is on file.
• The release covers this material (this shoot, this image, this recording).
• The release covers this medium — print, digital, social, broadcast, outdoor, packaging, point of sale.
• The release covers this territory.
• The release has not expired. Check the date.
• The release permits alteration, cropping, or compositing if the asset has been edited.
• The release permits sublicensing if affiliates, agencies, retailers, or channel partners will use it.
• The release addresses digital replicas if any synthetic element is involved.
• The release addresses machine learning use if the asset will enter a training set.
• For employees: the release is a standalone document, not a line in onboarding paperwork.
• For minors: signed by a parent or guardian; court approval obtained if required.

Failure mode: an onboarding "media release" used to support paid advertising.

Phase 4 — Stock and third-party imagery

• Confirm the license conveys a model release, not just copyright permission.
• Read the restrictions. Common prohibitions:
  • Uses suggesting endorsement of a product or service
  • Sensitive contexts (health conditions, financial distress, criminal activity, political messaging)
  • Merchandise for resale
  • Unflattering or potentially defamatory depiction
• Confirm the intended use does not violate any restriction.
• Confirm the agency's indemnity would actually respond to this use.
• Retain the license terms as they existed on the date of use.

Phase 5 — Deceased individuals

In this order:

• Determine domicile at death.
• Determine whether that jurisdiction recognizes a post-mortem right.
• Determine the duration of that right.
• Determine whether any registration or filing was required, and made.
• Identify the successor in interest — estate, heir, or licensing agency.
• Obtain a license, or document the basis for concluding none is required.
• Do not assume a long-deceased figure is in the public domain.

Phase 6 — Digital replicas and synthetic depictions

• Is any element of the asset generated rather than captured?
• Does the existing consent expressly permit creation of a replica?
• Does it permit this use of the replica?
• Does the applicable state's digital replica statute require specific, informed consent — and was it obtained in that form?
• Was the person independently represented, if the applicable law requires it?
• Is the replica compensated separately for creation and for use?
• Does the consent address use after the term and after death?
• Is the underlying data subject to deletion at termination?
• Would the depiction constitute a fabricated statement by the person? If so, treat false endorsement and consumer protection exposure as live regardless of the contract.

Rule: a media clause drafted before this technology existed does not authorize it.

Phase 7 — Escalation

Phase 8 — Documentation

• Clearance decision recorded with date and decision maker.
• Release reference linked to the asset in the rights inventory.
• Expiry date calendared with ninety- and thirty-day flags.
• Permitted media and territory recorded as asset metadata, visible to creative teams.
• Vendor representations and indemnities on file for externally produced assets.
• Quarterly audit scheduled: sample twenty in-use assets and trace each to a current release.

Phase 9 — The individual's side: negotiating a grant

• Attributes listed explicitly, not covered by "identity."
• Category defined narrowly with exclusions enumerated.
• Media and channels specified.
• Territory matched to actual need.
• Term of the grant matched to the payment term, with a defined sell-off.
• Exclusivity scope confirmed against existing and anticipated deals.
• Digital replica rights addressed as a separate article, separately consented and compensated.
• Machine learning use expressly prohibited or separately licensed.
• Approval rights with defined scope, review period, and deemed approval on silence.
• Morals clause mutual, with objective triggers.
• Termination consequences addressed for materials in market, inventory, and digital assets.
• Earned compensation survives termination.
• Sublicensing defined.
• Audit rights where royalties apply, with cost-shifting at a materiality threshold.
• Holding structure considered (personal vs. entity).
• Post-mortem planning: domicile, duration, any required filing.

Phase 10 — NIL compliance overlay

• Applicable state NIL statute identified and reviewed.
• Institutional policy reviewed, including disclosure requirements and timing.
• Prohibited categories checked (alcohol, tobacco and nicotine, cannabis, gambling, firearms, adult content).
• Conflicts with institutional sponsors checked.
• No unauthorized use of school marks, uniforms, or facilities.
• Deliverables are real and documented.
• Term addresses transfer, professional entry, and end of eligibility.
• Tax advice given in writing: self-employment income, estimated payments, self-employment tax.
• Financial aid impact considered.
• Immigration status checked — F-1 restrictions require immigration counsel.
• Representation agreement reviewed with the same care as the endorsement deal.

Phase 11 — Enforcement evaluation

• Is the person identifiable to the audience?
• Is the use commercial, or editorial/expressive?
• Which state's law applies — domicile, place of use, or both?
• Does that law reach the attribute used (voice, style, catchphrase)?
• Check the files for a release before asserting there is none.
• Is a false endorsement claim available under 15 U.S.C. § 1125(a)?
• What is the licensing value of the use?
• Are profits recoverable, and can attribution be proven?
• Are statutory damages or fees available under the applicable statute?
• Is injunctive relief the real objective? Under 15 U.S.C. § 1116 for false endorsement.
• Is there aggregation potential across many individuals?
• Does the demand risk a declaratory judgment action in a forum you would not choose?
• Is a platform takedown faster and sufficient?
• Confirm you own copyright before filing any 17 U.S.C. § 512 notice — the subject usually does not.

Related documents

• The Right of Publicity: Name, Image, Likeness, Digital Replicas, and the Limits of Owning Yourself
• Licensing and Protecting Name, Image, and Likeness: A Practical Guide
• Right of Publicity Toolkit: Releases, NIL Agreements, and Takedown Demands
• Copyright Fair Use Checklist: A Practical Checklist
• Advertising and Consumer Protection Compliance Toolkit
• Consumer Marketing Compliance Toolkit: TCPA, CAN-SPAM, Auto-Renewal, and Endorsements