Summary. Who owns your face, your name, and your voice — and who does not.

A right that had to be invented

American law took a long time to decide that a person has a legal interest in the commercial use of their own identity, and the reason is instructive.

The traditional common law offered privacy, not property. In 1902, when a flour company put a young woman's portrait on its advertising posters without asking, New York's highest court held in Roberson v. Rochester Folding Box Co. that she had no remedy at all. The public reaction was severe enough that the legislature enacted a statute the following year — still on the books, in modified form — making it both a misdemeanor and a civil wrong to use a living person's name, portrait, or picture for advertising or trade without written consent.

For the next half century, courts analyzed such claims as invasions of privacy: the injury was embarrassment, dignitary harm, unwanted exposure. That framing fit the ordinary citizen but fit celebrities badly. A famous athlete whose photograph appeared on a baseball card was not embarrassed; he was uncompensated. In 1953, Judge Jerome Frank named the difference in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.:

"[I]n addition to and independent of that right of privacy . . . a man has a right in the publicity value of his photograph . . . . This right might be called a 'right of publicity.'"

The Supreme Court has addressed it directly only once. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), a television station broadcast a human cannonball's entire fifteen-second act on the evening news. The Court held the First Amendment did not bar a right of publicity claim, reasoning that broadcasting the entire act threatened the economic value of the performance itself:

"[T]he broadcast of a film of petitioner's entire act poses a substantial threat to the economic value of that performance. . . . This same consideration underlies the patent and copyright laws long enforced by this Court."

Zacchini remains the only Supreme Court decision on the merits, and it involved unusual facts — an entire performance, taken whole. Nearly everything else is state law.

Fifty jurisdictions, no federal statute

There is no general federal right of publicity. What exists is a patchwork:

  • Statutory rights in roughly half the states, varying in what they protect, who may sue, how long the right lasts, and what remedies are available.
  • Common law rights in many others, developed case by case.
  • A handful of states with neither, where plaintiffs must rely on trademark, contract, or misappropriation theories.

The variations are not technical. They are structural, and they determine outcomes.

What identity attributes are protected? Every jurisdiction covers name and likeness. Many add voice and signature. Some add "identity" generally, which has been held to reach a distinctive singing style, a recognizable race car, a catchphrase, and a robot in a blonde wig turning letters on a game show set.

Is fame required? Most jurisdictions protect everyone, famous or not. A few effectively limit meaningful recovery to those with commercial value in their identity, because damages are measured by that value.

Do the rights survive death? This is the sharpest divide. Some states recognize robust post-mortem rights — several decades, descendible and licensable. Others recognize none at all, so that a person's identity enters the public domain at death. Others condition post-mortem rights on the person having exploited their identity commercially during life, or on registration.

Whose law applies? Usually the domicile of the person at death for post-mortem rights, and the place of the use for living-person claims — but choice of law in publicity cases is genuinely unsettled, and a national advertising campaign can implicate many states at once.

What are the remedies? Actual damages measured by the fair market value of the use, disgorgement of the defendant's profits, injunctive relief, and in several states statutory minimum damages and attorney fees. Punitive damages are available for knowing violations in some jurisdictions.

The practical consequence: there is no such thing as a national right of publicity analysis. A clearance decision requires knowing where the person is or was domiciled, where the use will appear, and what each relevant jurisdiction requires.

The elements of a claim

Formulations vary, but a typical claim requires:

  1. The defendant used the plaintiff's identity. Name, likeness, voice, or some other indicium sufficient to identify the plaintiff to the audience.
  2. The use was for a commercial or exploitative purpose — advertising, merchandising, or trade.
  3. Without consent.
  4. Resulting injury, usually measured by the commercial value of the use.

Two elements do most of the work.

Identifiability. The question is not whether the defendant used a photograph but whether the audience recognizes the plaintiff. Courts have found identifiability from a distinctive body without a face, from a soundalike voice imitating a singer who had refused to license, from a robot dressed to evoke a specific television personality, and from a race car with a driver's signature markings. Conversely, an unrecognizable person in a crowd scene has no claim.

Commercial purpose. This is the boundary between an actionable use and protected expression, and it is where most cases are decided.

The defenses that matter

Newsworthiness and public interest

The broadest and most frequently successful defense. Use of a person's identity in news reporting, commentary, biography, history, and matters of public concern is not actionable. The privilege is generous and does not disappear because the publication is sold for profit — newspapers and documentaries are commercial enterprises.

The limits appear at the edges. Advertising for a news publication that uses a person's image to promote the publication generally falls within the privilege where the image was lawfully used in the publication itself. But using a newsworthy person's image to sell an unrelated product does not.

Expressive works and the First Amendment

Books, films, plays, songs, video games, and works of art receive substantial protection even when they use real people. The doctrinal tests differ by jurisdiction, and the disagreement is real:

The transformative use test, drawn from copyright fair use, asks whether the work adds significant creative elements so that it becomes primarily the defendant's own expression rather than a literal depiction. California courts applied it to hold that stylized, fantastical depictions were protected while realistic reproductions sold as merchandise were not — and, in the college athletics context, that a video game realistically depicting athletes performing their actual sport was not transformative.

The Rogers test, borrowed from trademark law, asks whether the use has artistic relevance to the underlying work and, if so, whether it explicitly misleads as to source or content. Several circuits apply this to publicity claims involving expressive works.

The predominant purpose test asks whether the work's predominant purpose is to exploit the commercial value of the identity or to make an expressive comment.

A relatedness or newsworthiness balancing in other jurisdictions.

The tests produce different answers on the same facts, which is why forum matters enormously.

Separately, Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011) confirmed that video games are protected expression like books and films — a holding about content regulation rather than publicity, but one that shapes how courts approach games in this area.

Copyright preemption

17 U.S.C. § 301 preempts state rights equivalent to copyright in works of authorship. A recurring argument holds that a publicity claim based on the reproduction of a photograph or a recorded performance is really a copyright claim in disguise.

Courts distinguish carefully. A claim based on the persona itself — the plaintiff's identity, which is not a work of authorship — generally survives preemption. A claim that amounts to complaining about the copying of a particular copyrighted work in which the plaintiff appears is often preempted. The line is genuinely difficult in cases involving recorded performances, where the performer's identity and the copyrighted recording are entangled.

Related is Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which held that the Lanham Act's "origin of goods" provision does not reach the failure to credit the creator of a communicative work. Dastar limits attempts to convert attribution disputes into trademark claims, and its reasoning constrains some publicity theories as well.

Consent

The complete defense — if the consent covers the use. Most disputes about consent are disputes about scope: a release for one campaign used for another, a model release limited by territory or medium, a term that expired, an image licensed for editorial use appearing in advertising.

Where the right meets trademark

A person whose identity is used to suggest endorsement may have a federal claim under 15 U.S.C. § 1125(a) for false endorsement. This is not a right of publicity claim; it is a likelihood-of-confusion claim in which the celebrity functions as the mark.

Why it matters practically:

  • It is federal, avoiding the state patchwork and providing nationwide relief.
  • It requires consumer confusion about endorsement, sponsorship, or affiliation — a different and sometimes harder showing than commercial use of identity.
  • Remedies include injunctive relief under 15 U.S.C. § 1116 and damages, profits, and in some circumstances fees under 15 U.S.C. § 1117.
  • The Rogers framework applies to expressive works, and its contours were addressed by the Supreme Court in the context of parody products, which held that the framework does not apply where the accused use is as a source-identifying trademark.

A related question — whether a person's name can be registered as a trademark by someone else — was addressed in Vidal v. Elster, 602 U.S. 286 (2024), which upheld the Lanham Act's bar on registering a mark identifying a living individual without written consent, codified at 15 U.S.C. § 1052(c), against a First Amendment challenge. The names clause reflects, the Court noted, a long tradition of restricting trademark rights in others' names.

Name, image, and likeness in college athletics

For most of a century, the National Collegiate Athletic Association prohibited college athletes from receiving compensation, including for the use of their names, images, and likenesses. The prohibition was defended as necessary to preserve amateurism.

That structure collapsed quickly. The Supreme Court's unanimous decision in NCAA v. Alston, 594 U.S. 69 (2021), held that NCAA limits on education-related benefits violated the Sherman Act and rejected the argument that amateurism justified special antitrust deference. Justice Kavanaugh's concurrence went further, stating that the NCAA's remaining compensation rules raised serious antitrust questions and that "[t]he NCAA is not above the law."

Within weeks, the NCAA suspended its NIL prohibition, and a wave of state statutes took effect. The resulting environment has several features that matter to practitioners:

State NIL statutes vary substantially in what they permit, what disclosure they require, what categories of endorsement they prohibit (commonly alcohol, tobacco, gambling, and adult content), and what role institutions may play.

Collectives — entities organized to pool donor funds and contract with athletes — became the dominant mechanism, raising questions about whether payments are genuinely for services or are disguised recruiting inducements.

Institutional involvement has expanded from prohibition through facilitation toward direct participation, following litigation and settlements addressing revenue sharing.

Agents and advisors are regulated inconsistently, and many athletes contract without meaningful review.

Tax consequences are routinely mishandled. NIL income is self-employment income; recipients owe estimated taxes and self-employment tax, and many first learn this in April.

International students on F-1 visas face restrictions on unauthorized employment that NIL activity can violate, with immigration consequences disproportionate to the amounts involved.

For counsel, NIL work is contract work with a compliance overlay: scope of the grant, exclusivity, term, territory, morals clauses, approval rights, termination, and compliance with the applicable state statute and institutional policy.

Digital replicas, voice cloning, and synthetic performers

The technology to generate a convincing likeness or voice from a modest amount of source material arrived faster than the law addressing it, and the resulting gap is the most active area in the field.

Why existing law is an imperfect fit. A right of publicity claim requires a commercial or exploitative use. Much harmful synthetic content is not commercial in the traditional sense — it is political, harassing, or fraudulent. Copyright protects the underlying recordings but not the voice or face itself. Trademark requires confusion about endorsement. Defamation requires a false statement of fact, which some synthetic content avoids by being labeled.

The state response. A growing number of states have enacted statutes specifically addressing digital replicas, generally covering some combination of:

  • Unauthorized commercial use of a digital replica of a person's voice or likeness
  • Sexually explicit synthetic depictions, with civil and sometimes criminal liability
  • Synthetic election communications, usually with disclosure requirements
  • Post-mortem digital replica rights for deceased performers
  • Requirements that consent to a digital replica be specific, informed, and, in some states, subject to independent representation for individuals under contract

The contractual response. Collective bargaining agreements in the entertainment industry now address digital replicas directly, requiring consent for creation and separate consent for each use, compensation for both, and limits on the use of a performer's replica after employment ends or after death.

The federal response. Proposals to create a federal digital replica right have been introduced and debated. Whether one passes, and what it preempts, is the central open question in the area.

What practitioners should do now. Treat digital replica rights as a distinct category in every talent agreement — separate from the traditional name-image-likeness grant, with its own consent, its own compensation, its own term, and its own restrictions on sublicensing and machine learning use. A grant of "name, image, and likeness in all media now known or hereafter devised" was drafted for a world without generative models and should not be relied on to cover replica creation.

Four scenarios, four answers

The doctrine is easiest to hold onto through examples that vary one fact at a time.

The billboard

Wanda Okafor-Reyes is a nurse. A hospital system photographs her at a staff event and, eighteen months later, uses the photograph on billboards advertising its emergency department, over the tagline "Care you can trust."

Analysis. Commercial use of her likeness in advertising. No newsworthiness privilege — this is an advertisement, not news. No expressive work defense. The only question is consent, and here the record shows she signed a general "media release" at onboarding covering "internal and external communications."

Where it lands. The scope of that release is the whole case. A release referencing "communications" may or may not encompass paid outdoor advertising; courts read releases against the drafter and require that the granted scope be reasonably clear. If the release does not cover it, Wanda has a straightforward claim, with damages measured by the fair market value of a nurse model's fee for a comparable regional campaign — a modest number, which is why these cases settle.

The lesson for employers: a media release obtained at onboarding, in a stack of forms, for undefined future use, is the most common failure point in corporate publicity compliance.

The documentary

A streaming service produces a documentary about a 1980s municipal corruption scandal. It includes archival news footage of Ellis Trawick, then a city councilman, and a dramatized reenactment in which an actor portrays him.

Analysis. Both uses are within the newsworthiness and expressive-work privileges. Documentary treatment of a public matter is core protected expression, and reenactment is a standard documentary technique. Trawick's remedy, if the portrayal is false and defamatory, lies in defamation — a different tort with different elements including fault and falsity.

Where it changes. If the service used Trawick's face on a billboard advertising the documentary, the advertising-for-a-protected-work rule generally still protects it, because the image is drawn from the work itself and promotes that work. If it used his face on a T-shirt, it would not.

The video game

A studio releases a sports game featuring realistically modeled players with accurate positions, heights, jersey numbers, and playing tendencies — but no names. Players are identifiable to any fan.

Analysis. Video games are protected expression under Brown v. Entertainment Merchants Association, 564 U.S. 786 (2011). But protection of the medium does not resolve the publicity claim. Under a transformative use test, a realistic depiction of an athlete doing exactly what the athlete does for a living adds little creative transformation — courts applying this test in the college athletics context found no transformation on closely similar facts. Under the Rogers test, the use has artistic relevance and does not explicitly mislead, so it would likely be protected.

Where it lands: it depends on the circuit. This is the clearest example of why forum matters in publicity litigation, and why studios license rather than litigate.

The synthetic advertisement

A direct-to-consumer supplement brand generates a thirty-second video in which a synthetic version of a well-known actor's face and voice recommends the product. The video is labeled "AI-generated" in small text.

Analysis. Every theory is available. Right of publicity: commercial use of likeness and voice without consent, in whatever states apply. False endorsement under 15 U.S.C. § 1125(a): the use suggests endorsement and is likely to confuse. State digital replica statutes: unauthorized commercial replica. Possibly state consumer protection law and 15 U.S.C. § 45 as a deceptive practice.

The disclaimer does almost nothing. It does not make the use non-commercial, and courts have long been skeptical that fine-print disclaimers cure endorsement confusion.

The practical point: synthetic advertising of this kind is not a close legal question. What is close, and genuinely unsettled, is synthetic content that is expressive rather than commercial — satire, art, political commentary — where the First Amendment analysis has not yet been worked out.

Building a clearance practice

Organizations that use images of people at scale — advertisers, publishers, platforms, retailers — need process rather than case knowledge.

Classify the use first. Advertising and merchandising require consent, full stop. Editorial, news, and expressive uses generally do not. The single most valuable rule an organization can adopt is that no image of an identifiable person appears in advertising without a signed release on file, with no exceptions granted under deadline pressure.

Get releases that are actually broad enough. A usable release specifies: the person; the images or recordings covered; the media (print, digital, broadcast, outdoor, social, packaging); the territory; the term; whether the grant is exclusive; whether edits and composites are permitted; whether the material may be sublicensed to affiliates or channel partners; and — now essential — whether digital replicas or machine learning use are permitted, which should be a separate opt-in rather than swept into "all media now known or hereafter devised."

Track expiration. Releases with terms expire, and reusing an image after expiration is the second most common failure mode. Maintain a rights management system that flags expiry, or negotiate perpetual grants where the compensation supports it.

Handle stock imagery carefully. A stock license from an agency conveys copyright permission. It may or may not convey a model release, and the license terms typically prohibit uses suggesting endorsement of a product or depicting the model in a sensitive context. Read the license restrictions; they are where the publicity risk lives.

Watch crowd and background use. Incidental, unidentifiable appearance in a crowd is generally not actionable. A recognizable individual foregrounded in an advertisement is. The line is identifiability to the audience.

Deceased individuals require a separate workflow. Determine the domicile at death, determine whether that jurisdiction recognizes post-mortem rights, determine the term, and identify the successor in interest. Estates of well-known figures are typically represented by licensing agencies with published terms.

Escalate anything involving a public figure and a product. The false endorsement overlay under 15 U.S.C. § 1125(a) raises exposure substantially, and the plaintiffs' bar in this area is organized and well funded.

Remedies and the economics of a claim

Actual damages are measured by the fair market value of the use — what the defendant would have paid for a license. For an unknown person this is a modest figure; for a well-known one it can be substantial, and expert testimony about comparable endorsement deals is standard.

Disgorgement of profits is available in many jurisdictions, and the allocation burden usually shifts: the plaintiff proves gross revenue attributable to the use, and the defendant proves deductible costs and the portion attributable to factors other than the identity. This mirrors the structure of profits recovery in trademark law under 15 U.S.C. § 1117.

Statutory damages exist in several states, with minimums that make small cases viable and that drive settlement in aggregate-use situations.

Attorney fees are available under some state statutes, often to a prevailing party rather than only to a prevailing plaintiff.

Injunctive relief is the remedy that usually matters most in advertising disputes, because a campaign in market is a continuing harm and the cost of pulling it is the real leverage.

Punitive damages for knowing or willful violations are available in a number of jurisdictions, and evidence that the defendant sought a license and was refused before proceeding is the classic predicate.

The economics. Because damages track licensing value, the typical case is not large. What makes publicity litigation consequential is aggregation — class claims involving many individuals whose images were used in a database, an app, or a marketing platform — and injunctive leverage against a campaign the defendant has already paid to produce and place.

Choice of law: the problem nobody solves cleanly

Because the right is state-created and the variations are outcome-determinative, choice of law is not a technicality in publicity cases. It is often the whole dispute.

For living persons, courts generally look to the law of the place where the injury occurred, which for a national campaign means everywhere it appeared. Some courts apply the plaintiff's domicile on the theory that the injury to a personal right occurs where the person is. Restatement approaches ask which state has the most significant relationship to the occurrence and the parties, weighing the place of injury, the place of the conduct, the parties' domiciles, and the place where the relationship is centered.

For deceased persons, the dominant rule looks to the domicile at death. This produces sharp results: an entertainer who died domiciled in a state with no post-mortem right may have no descendible publicity interest at all, even though their image is used commercially in states that recognize robust post-mortem rights. Several states amended their statutes to address exactly this, and at least one did so with retroactive effect that was itself litigated.

Contractual choice of law helps between parties to an agreement and does nothing against a stranger. A license governed by one state's law does not determine which state's publicity law applies to a claim by a third party.

Practical guidance for national campaigns:

  1. Identify the individuals depicted and their domiciles.
  2. Identify every state where the campaign will appear.
  3. Determine the most protective applicable regime and clear to that standard. Clearing to the highest standard is almost always cheaper than a choice-of-law fight.
  4. For deceased individuals, determine the domicile at death before anything else; it may end the analysis in either direction.
  5. Where the depicted individual is outside the United States, check the local personality-rights regime — many civil law countries protect image rights robustly and treat them as personality rights that cannot be fully assigned.

What the right of publicity does not do

Clients frequently want the right of publicity to solve problems it was not built for, and being clear about the boundaries saves everyone time.

It does not stop unflattering coverage. News, commentary, criticism, and biography are protected. A person who dislikes an accurate story about them has no publicity claim.

It does not protect against being photographed in public. The tort concerns commercial use, not capture. Restrictions on photography come from trespass, harassment, and specific statutes, not from publicity law.

It does not create an attribution right. A person whose contribution goes uncredited has, at most, a contract claim. Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003) closed the trademark route to attribution claims for communicative works.

It does not reach non-commercial harassment. Synthetic content created to humiliate rather than to sell falls outside the commercial-use element in most jurisdictions. The remedies there are the newer digital replica statutes, harassment and stalking laws, defamation, and intentional infliction claims — which is precisely the gap the recent statutes were written to fill.

It does not survive a valid release. The most common defense in practice is not the First Amendment. It is a signed piece of paper that the plaintiff forgot about.

It does not preempt or replace contract. Where a talent agreement governs, its terms control between the parties, and a publicity claim between contracting parties is usually a breach claim wearing different clothes.

The right of publicity as an asset

For people whose identity has commercial value, the right is not merely a shield. It is an income-producing asset that can be structured, licensed, valued, insured, and passed down — and it is routinely managed badly.

Structuring. Many well-known individuals hold their publicity rights in a separate entity — a loan-out corporation or a dedicated holding company — which then licenses them. The reasons are ordinary: liability separation, contracting convenience, tax planning, and the ability to transfer the asset without transferring the individual's other affairs. Where post-mortem rights are recognized, holding them in an entity can simplify succession considerably, because the entity survives the person and the entity's ownership passes under the estate plan.

Licensing terms that matter. A publicity license should specify: the attributes licensed (name, image, likeness, voice, signature, biographical facts); the products or services; the media and channels; the territory; the term; exclusivity and any category exclusivity; approval rights over creative and over each use; minimum guarantees and royalty structure; audit rights; morals clauses running in both directions; termination and sell-off periods; and — separately and explicitly — whether digital replicas may be created and, if so, under what conditions and for how long.

Category exclusivity is where money is made and lost. An athlete who grants "beverages" exclusively cannot later license an energy drink, a bottled water, and a sports drink separately. Define the category narrowly and enumerate what is excluded.

Approval rights need mechanics. A right to approve that has no deadline becomes a right to stall, and licensees insist on deemed-approval clauses. Negotiate the review period and what happens on silence, not just the existence of the right.

Valuation. Publicity rights are valued using the same methods as other intangibles — comparable licenses, relief from royalty, and income approaches. Valuations are prepared for estate tax purposes, for divorce, for financing, and for litigation, and the assumptions differ by purpose. Estates of well-known figures have litigated valuation with tax authorities at considerable length, and the disputes generally turn on whether a post-mortem right existed at all under the domicile's law and what a willing buyer would pay for it.

Estate planning. Because post-mortem rights vary by domicile, planning must begin with domicile. A person whose identity has substantial commercial value should know whether their state of residence recognizes a descendible right, for how long, and whether any registration is required to preserve it. Some states condition post-mortem protection on the right having been exploited during life or on a filing after death; missing the filing forfeits the asset.

Insurance. Errors-and-omissions policies for advertising and media routinely cover publicity and false endorsement claims, subject to exclusions for knowing violations and for claims arising from prior notice. Read the exclusions before relying on the coverage.

Frequently asked questions

Is the right of publicity assignable? In most states it can be licensed, and in many it can be assigned outright — which is why it is commonly held in an entity. A few jurisdictions treat it as more closely personal and limit full assignment, permitting licensing instead. Where post-mortem rights exist, they are generally descendible and can be devised by will or pass by intestacy.

What if someone registers my name as a trademark? Registration of a mark identifying a particular living individual requires that person's written consent under 15 U.S.C. § 1052(c), a provision upheld against First Amendment challenge in Vidal v. Elster, 602 U.S. 286 (2024). If a registration issued without consent, cancellation is available under 15 U.S.C. § 1064.

Can a minor consent? Generally a parent or guardian must sign, and several states require court approval for contracts with minor performers along with trust arrangements for a portion of earnings. NIL agreements with high school athletes raise this directly and are frequently mishandled.

Do I own my own face? In a commercial sense, mostly yes — you control its use in advertising and merchandise in most states. You do not control its use in news, commentary, biography, or expressive works.

Does the right survive death? It depends entirely on the state. Some recognize decades of descendible post-mortem rights; others recognize none. For a deceased person, the domicile at death usually controls.

Is a photograph the photographer's or the subject's? Both have rights, and they are different. The photographer owns the copyright in the photograph. The subject may have a publicity right in the commercial use of their identity. A publisher needs both.

Can a company use an employee's photo in marketing? Only with consent. Employment does not imply a publicity release. Get a written release with defined scope, term, and territory, and address what happens after employment ends.

Is a soundalike or lookalike safe? Not necessarily. Courts have found liability where a performance was designed to evoke a specific person who had declined to license, particularly where the record showed the imitation was deliberate.

What about using a celebrity's name in comparative advertising? Nominative reference to a person to describe them truthfully is generally permitted; using them to suggest endorsement is not. The line is endorsement, not mention.

Does a disclaimer help? Sometimes for false endorsement claims, rarely for straight publicity claims. A disclaimer does not make a commercial use non-commercial.

Are AI-generated images of real people actionable? Under a growing number of state statutes, yes, when used commercially or in specified categories. Under general publicity law, the analysis is the same as for any other depiction: was the person's identity used, for a commercial purpose, without consent.

What comes next

Three developments are worth watching, because each would change practice materially.

A federal digital replica right. Proposals would create a nationwide right against unauthorized digital replicas of voice and likeness, with a term extending after death, safe harbors for online services conditioned on notice-and-removal, and exclusions for news, commentary, parody, and documentary use. The hard questions are the same ones that make the existing patchwork difficult: what counts as a replica, how expressive uses are protected, whether the right is licensable and descendible, and — most consequentially — whether federal law would preempt the growing body of state law or merely sit alongside it. A federal floor with state supplements would preserve the complexity; a preemptive federal right would end it.

Consolidation in college athletics. The movement from prohibition through permission to institutional revenue sharing has not reached equilibrium. Whether athletes are ultimately treated as employees, whether a collectively bargained framework emerges, and whether Congress creates a uniform national standard are all open. Each answer changes the shape of NIL contracting substantially.

Judicial convergence, or not, on expressive use. The transformative use test, the Rogers test, and the predominant purpose test produce different outcomes on identical facts. The Supreme Court's recent trademark decisions have narrowed Rogers in the trademark context without addressing publicity, and the circuits remain split. A cert grant on the expressive-use standard would be the single most consequential development available, because it would tell studios, publishers, and platforms whether a national clearance standard is possible.

Until then, the practical posture is unchanged and unglamorous: know the domicile, know where the use appears, clear to the most protective applicable standard, get the release in writing, and treat digital replica rights as a separate grant requiring separate consent.

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