The right of publicity is an individual’s right to control and profit from the commercial use of his or her name, image, likeness, and other personal characteristics, commonly referred to as “NIL.” For athletes, celebrities, influencers, and other individuals in the public spotlight, NIL rights are crucial for maintaining brand integrity and generating income. However, any individual has the right to assert a right of publicity claim if their identity is used commercially without his or her consent. Here’s a closer look at what NIL rights entail and why they matter:
What Are NIL Rights?
NIL rights encompass the use of a person’s identity in various forms:
- Name (including full names, nicknames, and former names)
- Image
- Likeness
- Voice
- Signature
- Any other distinctive personal attributes (e.g., gestures or phrases)
Why Are NIL Rights Important?
NIL rights are crucial for multiple reasons:
- Financial Opportunities: For public figures, NIL rights can be a significant source of income. They can endorse products, obtain sponsorships, and appear in advertisements and marketing campaigns, all of which can generate significant revenue for the individual.
- Brand Control: Proper management of NIL rights allows individuals to control how their identities are used and monetized, ensuring that any revenue-generating activities align with their personal brand and values.
- Protection from Exploitation: Proper management of NIL rights also protects individuals from unauthorized use of their identity, which could lead to misrepresentations or even financial losses.
Recent Developments
The landscape of NIL rights has evolved significantly, particularly in the realm of college athletics. In 2021, the United States Supreme Court held in NCAA v. Alston that the NCAA’s longstanding rules restricting “education-related benefits” for amateur student-athletes violated federal antitrust laws. Prior to Alston, college athletes were barred from profiting from their own NIL. The NCAA rules did not, however, prohibit colleges and universities from making money off their own student-athletes’ NIL. The Supreme Court’s ruling in Alston forced the NCAA to change those rules, which now permit college athletes to profit from their own NIL.
A recent settlement in the federal case House v. NCAA will also drastically shape the college athletics landscape with respect to NIL rights. House involved multiple class action lawsuits against the NCAA alleging antitrust law violations. The parties reached a settlement in May of 2024. If approved by the Court, the settlement will require the NCAA to back-pay former DI college athletes $2.8 million in damages suffered from their previous inability to profit from their own NIL. The settlement would also end the restriction on colleges and universities from directly sharing revenue with student-athletes.
How Can Individuals Protect Their NIL Rights?
- Legal Contracts: Ensure that any use of your NIL is governed by clear, legally binding agreements.
- Intellectual Property Registration: Register trademarks to protect your name and likeness.
- Professional Advice: Work with an attorney to navigate the complexities of NIL rights and opportunities.
Conclusion
NIL rights are a vital aspect of modern personal branding and commercial strategy. Whether you’re an athlete, entertainer, or influencer, understanding and managing your NIL rights can help you protect your identity and maximize your earning potential. As the digital world continues to expand, the significance of NIL rights will only grow, making it essential to stay informed and proactive. If you have questions about protecting your NIL rights, contact us for more information.