Name, Image and Likeness

The right of publicity is a person’s right to control the commercial use of their identity, meaning their name, image, likeness, voice, and other recognizable attributes. “Name, image and likeness,” or NIL, is the same doctrine wearing a newer label, one that entered ordinary speech after the NCAA lifted its ban on athlete endorsements in July 2021.

The single most important structural fact: there is no federal right of publicity. It is state law, and it varies. Roughly half the states protect it by statute, others recognize it only through common law, several have both, and a handful have never squarely decided. Whether a given ad is lawful can depend entirely on where the plaintiff lived or died.

The elements of a claim

Across most jurisdictions, a plaintiff must show four things:

• Use of identity. The defendant used something that identifies the plaintiff to the audience. This is a question of recognition, not of medium.
• For commercial advantage or purposes of trade. Usually advertising, merchandise, or endorsement. News reporting, commentary, biography, and most expressive works fall outside this element or are protected by the First Amendment.
• Without consent. Consent is the whole ballgame in practice, and it is why release forms exist.
• Resulting injury. For a celebrity this is typically the lost licensing fee. For a private person it can be dignitary harm.

Statutes add their own wrinkles. California Civil Code section 3344 requires a knowing use and provides statutory damages of $750 or actual damages, whichever is greater, plus any profits from the unauthorized use. Attorney’s fees and costs go to the prevailing party, which cuts both ways. New York Civil Rights Law sections 50 and 51 reach uses “for advertising purposes or for the purposes of trade” and make a violation a misdemeanor as well as a tort.

Identity is much broader than a face

The most consequential doctrinal move in this area is that courts protect identity, not any particular attribute. If the audience recognizes you, the medium is irrelevant.

Motschenbacher v. R.J. Reynolds Tobacco Co. (9th Cir. 1974) involved a cigarette ad using a photo of a race car. The driver’s face was not visible and he was never named, but the car’s distinctive markings made him identifiable to racing fans. That was enough.

Carson v. Here’s Johnny Portable Toilets (6th Cir. 1983) extended it to a catchphrase. The defendant never used Johnny Carson’s name or picture, only the phrase “Here’s Johnny,” which the court held evoked his identity.

Voice became actionable in Midler v. Ford Motor Co. (9th Cir. 1988). Ford asked Bette Midler to sing in a commercial, she declined, and Ford hired a former backup singer instructed to sound exactly like her. The court held that deliberately imitating a widely known professional singer’s distinctive voice to sell a product is actionable in California. Waits v. Frito-Lay (9th Cir. 1992) affirmed a substantial jury verdict on nearly identical facts, and Tom Waits had publicly refused to do commercials at all, which sharpened the injury.

The outer edge is White v. Samsung Electronics America (9th Cir. 1992). Samsung ran an ad showing a robot in a blonde wig and a gown turning letters on a game-show set. The panel let Vanna White’s common-law claim proceed, holding that a defendant can appropriate identity without using name, likeness, or voice at all. Judge Kozinski’s dissent from the denial of rehearing en banc, at 989 F.2d 1512 (9th Cir. 1993), is the canonical criticism: “Overprotecting intellectual property is as harmful as underprotecting it.” He argued the majority had created a right against evoking anything associated with a person, with no First Amendment ceiling. The dissent lost, but it is why courts elsewhere treat White cautiously.

Where the right came from

It begins with a refusal. In Roberson v. Rochester Folding Box Co., 171 N.Y. 538 (1902), a flour company used a young woman’s portrait on advertising posters without asking. The New York Court of Appeals held that no right of privacy existed at common law and she had no claim. The public reaction was harsh enough that the legislature responded in 1903 with what are now Civil Rights Law sections 50 and 51, the first American statute of its kind. New York remains statute-only to this day.

Georgia went the other way in Pavesich v. New England Life Insurance Co., 122 Ga. 190 (1905), recognizing the common-law right.

The name arrived in Haelan Laboratories v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953), a fight over exclusive baseball-card contracts. Judge Frank coined the phrase “right of publicity” and made the decisive move: this right is assignable, a transferable property interest rather than a personal feeling. That is what makes licensing, and therefore NIL deals, possible at all.

The only U.S. Supreme Court decision in the field is Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), where a news station broadcast a human cannonball’s entire act. The Court held the First Amendment did not privilege taking the whole performance.

How it differs from privacy and trademark

William Prosser’s 1960 article divided privacy into four torts, the fourth being appropriation of name or likeness. The right of publicity grew out of that fourth branch but inverted its logic. Privacy protects against unwanted exposure; publicity protects the economic value of wanted exposure. A celebrity suing over an ad is not embarrassed, they are unpaid.

Trademark law reaches similar conduct from a different direction. Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), supports a false endorsement claim when a use is likely to confuse consumers about sponsorship. It is federal, so it works across state lines, but it requires likely confusion, which the right of publicity does not. Many complaints plead both.

NIL and the athlete context

College athletics is where most people met this doctrine. The NCAA’s amateurism rules long forbade athletes from monetizing their own identities while everyone around them did. In re NCAA Student-Athlete Name and Likeness Licensing Litigation (the O’Bannon and Keller cases) attacked that directly, and after NCAA v. Alston, 594 U.S. 69 (2021), where the Supreme Court unanimously rejected the NCAA’s antitrust defense, the NCAA adopted an interim NIL policy effective July 1, 2021.

Nothing about NIL changed the underlying doctrine. It simply removed a private association’s rule that had been suppressing an existing state-law right. What athletes gained was permission to exercise a right they already had, governed by the same patchwork of state statutes as everyone else, which is why athlete NIL rules still differ state by state.

Frequently asked questions

What does name, image and likeness mean? It is shorthand for the identity attributes the right of publicity protects: your name, your photograph or visual likeness, and by extension your voice, signature, and other identifying traits. The right of publicity is the legal claim that lets you control commercial use of those attributes. NIL is the same doctrine under a newer label, popularized after the NCAA allowed college athletes to be paid for endorsements in July 2021.

Is the right of publicity federal law? No. There is no federal right of publicity statute. It is state law, and roughly half the states have a publicity or privacy statute while others recognize it only at common law. New York protects it by statute alone, having refused to recognize a common-law version in Roberson v. Rochester Folding Box Co. (1902). California has both a statute, Civil Code section 3344, and a parallel common-law claim.

What are the elements of a right of publicity claim? Most states require four things: the defendant used the plaintiff’s identity, the use was for commercial advantage or purposes of trade, the plaintiff did not consent, and the use caused injury. Statutes often add elements such as a knowing use or a required connection to advertising, and a few require the plaintiff to have commercial value in their identity.

Can a soundalike or a lookalike violate the right of publicity? Yes. Identity is broader than a photograph. In Midler v. Ford Motor Co. (9th Cir. 1988) and Waits v. Frito-Lay (9th Cir. 1992), advertisers hired imitators after the real singers declined, and lost. Courts have also found liability for a catchphrase in Carson v. Here’s Johnny Portable Toilets (6th Cir. 1983) and for a race car’s distinctive markings in Motschenbacher v. R.J. Reynolds (9th Cir. 1974).

Authorities and sources

• 15 U.S.C. § 1125(a): False designations of origin and false endorsement (Cornell LII)
• Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977) (Cornell LII)
• NCAA v. Alston, 594 U.S. 69 (2021) (Cornell LII)
• New York Civil Rights Law § 50: Right of privacy
• New York Civil Rights Law § 51: Action for injunction and damages
• California Civil Code § 3344: Use of name, voice, signature, photograph or likeness
• Right of publicity overview (Cornell LII Wex)
• Invasion of privacy overview: the four privacy torts (Cornell LII Wex)
• NCAA name, image and likeness (NIL) policy and guidance (NCAA.org)

Going further: The NIL and right of publicity guide .

This page is general legal information, not legal advice, and it does not create an attorney-client relationship.