Do college athletes own their NIL rights?

Yes. Since the NCAA's interim policy took effect July 1, 2021 — following the Supreme Court's decision in NCAA v. Alston — college athletes can be paid for the use of their name, image, and likeness through endorsements, autographs, social media, camps, and appearances. Those NIL rights flow from each athlete's underlying state right of publicity. Deals are still governed by a patchwork of state laws and school and conference rules, so terms vary.

Can someone use my likeness in an AI deepfake?

Generally not for commercial or deceptive purposes without consent. Using a person's face or voice in an AI-generated deepfake to sell products, fake an endorsement, or impersonate them can violate the right of publicity and, in some states, new digital-replica laws like Tennessee's ELVIS Act and California's AB 2602 and AB 1836. The proposed federal NO FAKES Act would add nationwide protection. First Amendment defenses still apply to genuine parody, news, and commentary.

Right of Publicity & NIL: Complete Guide

Q: Is the right of publicity federal or state law?

It is state law. There is no general federal right of publicity statute. About half the states protect it by statute — California's Civil Code sections 3344 and 3344.1 are the best known — while others rely on common law, and some recognize both. The federal Lanham Act's false-endorsement provision can supplement it, and Congress is considering the NO FAKES Act to address AI replicas, but for now protection depends heavily on which state's law applies.

The right of publicity explained — who controls your name, image, voice, and likeness, plus NIL, deepfakes, post-mortem rights, and the state map.

Quick answer: The right of publicity is your legal right to control the commercial use of your identity — your name, image, likeness, and usually your voice. It stops others from using who you are to sell products or fake an endorsement without permission. It is almost entirely state law: there is no general federal statute, roughly half the states protect it by statute (California's [Civil Code § 3344](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV§ionNum=3344) is the leading example), and others rely on common law. Two limits define it: the use generally must be commercial, and the First Amendment protects news, art, and commentary. It now drives college NIL deals, AI deepfake disputes, and post-mortem estate rights.

Your face on a billboard. Your voice in an ad you never recorded. Your name on a product you never endorsed. The right of publicity is the body of law that decides who gets to profit from you — and in an era of NIL money and AI-generated replicas, it has quietly become one of the most important and fast-moving areas of intellectual property. This is the hub guide: what the right is, where it comes from, its limits, and how it plays out across NIL, advertising, deepfakes, and death.

What is the right of publicity?

The right of publicity is the right of every person to control and profit from the commercial use of their identity. That identity is broader than a photograph — courts have protected a person’s:

Name (including nicknames and stage names);
Image and likeness (photos, drawings, look-alikes);
Voice (including sound-alikes hired to imitate a distinctive singer); and
Other recognizable attributes — a signature phrase, a distinctive persona, even a race car uniquely associated with a driver.

The term itself was coined in 1953 in Haelan Laboratories v. Topps Chewing Gum, when a federal court recognized that a baseball player had a marketable “right in the publicity value of his photograph.” The core idea: your identity has commercial value that you built, and you — not a stranger — should capture it.

For a plain-English deep dive on the elements and history, see what is the right of publicity. To see how courts apply these rules in real disputes, browse our right of publicity case archive.

Is the right of publicity federal or state law?

This is the single most important structural fact: there is no general federal right of publicity. Protection comes from the states, and it comes in two flavors:

Statutory. Roughly half the states have enacted right-of-publicity statutes. California’s Civil Code § 3344 is the best known, imposing liability on anyone who knowingly uses another’s name, voice, signature, photograph, or likeness for advertising or selling without consent, with statutory damages starting at $750 plus actual damages and profits.
Common law. Many other states protect the right through judge-made law, and several — including California — recognize both a statutory and a common-law claim at the same time.

The result is a genuine patchwork. New York, for example, protects the right only by statute (Civil Rights Law §§ 50–51) and historically declined to recognize a broader common-law version. A handful of states have little or no clear protection at all. Because the applicable law usually turns on where the person is domiciled or where the harm occurred, the same ad can be lawful in one state and actionable in another. We map the differences in right of publicity by state and cover the most influential regime in California’s right of publicity.

What counts as “commercial use”?

The right of publicity is not a right to never appear anywhere. Its engine is commercial use — using someone’s identity to sell or advertise something, or otherwise for direct commercial advantage. Classic examples:

Putting a celebrity’s photo on product packaging or a billboard;
Implying a public figure endorses a brand;
Selling merchandise — posters, T-shirts, bobbleheads — bearing someone’s likeness; and
Hiring a sound-alike or look-alike to suggest a star is involved. Bette Midler and Tom Waits both won landmark cases against advertisers who used imitators of their distinctive voices.

By contrast, using someone’s name or image in a news report, biography, documentary, novel, or work of commentary is generally not the kind of commercial exploitation the right targets — even though the publisher earns money. The law draws the line between using identity as the product or endorsement and using it to inform or express. That distinction is where the First Amendment enters.

What are the First Amendment limits?

Because the right of publicity restricts speech, courts constantly balance it against the First Amendment. The only U.S. Supreme Court decision squarely on point, Zacchini v. Scripps-Howard Broadcasting (1977), upheld a performer’s claim after a TV station aired his entire “human cannonball” act — but it was a narrow ruling. Below it, courts use several tests:

The transformative use test. Adopted by the California Supreme Court in Comedy III Productions v. Gary Saderup (2001), it asks whether the work adds significant creative expression beyond a literal depiction. A realistic charcoal portrait sold on T-shirts failed; a heavily reimagined comic-book character passed.
The Rogers v. Grimaldi test. Borrowed from trademark law, it protects the use of a name in an expressive work (like a film title or video game) unless it has no artistic relevance or is explicitly misleading.
Newsworthiness and public interest. Reporting on public figures and matters of public concern is broadly protected.

The upshot: artists, journalists, and commentators usually win; advertisers and merchandisers usually lose. But the tests conflict across circuits, and video-game and AI cases keep testing the boundaries.

How is it different from defamation and trademark?

People blur these three, but they protect different things:

Defamation protects your reputation from false statements. The right of publicity does not require any falsehood — a completely true, flattering photo used in an ad can still violate it.
Trademark and false endorsement protect against consumer confusion about the source of goods. The federal Lanham Act § 43(a) lets a celebrity sue when an ad falsely implies they endorse a product, which often overlaps with a publicity claim but is a separate, federal theory.
The right of publicity protects the commercial value of your identity itself, regardless of truth or consumer confusion.

It is also cousin to — but distinct from — the right of privacy. Privacy protects your interest in being left alone; publicity protects your interest in cashing in. That is why publicity rights are treated as property in most states, meaning they can be licensed, assigned, and inherited. If you are weighing which protections your situation needs, which IP protection do you need and trademark vs. copyright vs. patent put the whole toolkit side by side.

How does the right of publicity power NIL deals?

For decades, the NCAA barred college athletes from earning money, treating their names and images as off-limits. That collapsed after the Supreme Court’s unanimous 2021 antitrust decision in NCAA v. Alston, and on July 1, 2021 the NCAA adopted an interim policy allowing athletes to be paid for their name, image, and likeness (NIL).

NIL is simply the right of publicity applied to student-athletes. Today college — and increasingly high school — athletes can earn from:

Brand endorsements and sponsorships;
Social media posts and content deals;
Autographs, memorabilia, and merchandise;
Camps, lessons, and personal appearances; and
Collectives that pool booster money to fund athlete deals.

Because there is still no comprehensive federal NIL statute, deals are governed by a mix of state NIL laws, school and conference rules, and each athlete’s underlying state right of publicity. Contracts, disclosure obligations, and — for minors — parental consent all matter. We break down the mechanics in college athlete NIL deals, and the California-specific rules (the state whose 2019 “Fair Pay to Play Act” started the wave) in NIL rights in California.

How does it apply to advertising and endorsements?

Advertising is the heartland of the right of publicity. The safe rule for any brand is simple: get a signed release before using a real person’s name, image, or voice to promote anything. Common traps:

Implied endorsement. Even without saying “I love this product,” juxtaposing a celebrity’s image with your brand can imply one.
Look-alikes and sound-alikes. Hiring an imitator does not avoid liability — the Midler and Waits cases proved that intent to evoke the star is enough.
Employees, customers, and influencers. You need permission to use anyone’s likeness commercially, not just the famous. And influencer promotions carry a separate obligation to disclose paid relationships under FTC rules — see influencer brand deals and the FTC. If you are the creator whose face and voice are the product, influencer and creator likeness rights covers protecting your own identity.
Old releases. A release for one campaign may not cover a new use, a new medium, or a new territory.

Our guide on using someone’s likeness in advertising walks through releases, scope, and the newsworthiness exception in detail.

What about AI deepfakes and digital replicas?

Generative AI has turned the right of publicity into front-page law. Anyone can now clone a voice or generate a photorealistic deepfake — and using one to sell products, fake an endorsement, or impersonate a person can violate the right of publicity directly.

Legislators are racing to respond:

Tennessee’s ELVIS Act (2024) expressly added voice to the state’s protected attributes and targets AI voice cloning.
California’s AB 2602 and AB 1836 (2024) regulate unauthorized digital replicas — AB 1836 protects deceased performers’ digital likenesses, and AB 2602 governs replica clauses in performer contracts.
The proposed federal NO FAKES Act would, for the first time, create a nationwide right against unauthorized AI-generated replicas of a person’s voice and likeness.

First Amendment defenses for parody, satire, news, and commentary still apply, so not every AI depiction is unlawful. For the fast-moving details, see AI deepfakes and the right of publicity, our tracker on the NO FAKES Act and digital-replica laws, and the practical fallout in AI voice cloning and deepfakes.

Do publicity rights survive death?

In many states, yes — the right of publicity is descendible property that passes to heirs and can be licensed for decades after death. But the term varies dramatically:

California protects a post-mortem right for 70 years after death (Civil Code § 3344.1).
Indiana offers one of the longest terms — 100 years.
Tennessee protects it for at least 10 years and potentially indefinitely so long as the identity is commercially exploited.
New York added a post-mortem right for deceased performers in 2021 (Civil Rights Law § 50-f), lasting 40 years.
Many states provide no post-mortem right at all, which is why estates of stars like Marilyn Monroe have litigated hard over which state’s law governs.

Because the answer turns on the person’s domicile at death, estate planning for public figures is genuinely high-stakes. See post-mortem right of publicity for the full state-by-state picture.

The bottom line

The right of publicity comes down to one principle with a lot of moving parts: you own the commercial value of your identity, but that right is defined state by state and bounded by the First Amendment. If you are a creator, athlete, or brand, three rules cover most situations — get a written release before using anyone’s identity commercially, remember that news, art, and commentary are usually protected, and pay attention to which state’s law applies, especially for NIL, deepfakes, and estates. As AI makes it trivial to fake a face or a voice, this once-niche doctrine is becoming essential knowledge for anyone whose name is worth something.

This guide is general education, not legal advice, and does not create an attorney-client relationship. Right-of-publicity rules vary enormously by state and are changing quickly as NIL and AI-replica laws evolve — consult an attorney licensed in your jurisdiction before acting.