Your Face Is Not Public Domain: The Right of Publicity, NIL, and the State-Law Patchwork
By Casey Scott McKay ·
This article explains the American right of publicity: a state-by-state body of law, invented by a federal judge in 1953 to solve a baseball-card problem, that now governs everything from billboard photos to synthetic voices to college athlete endorsement deals. It traces the doctrine from its privacy roots in Warren and Brandeis through Haelan Laboratories, and shows why the split between privacy-rooted and property-rooted regimes still decides who can sue, what damages are available, and whether the right survives death. It works through the two dominant regimes in detail, California Civil Code 3344 and 3344.1 alongside the common-law claim and New York Civil Rights Law 50 and 51 with the post-mortem right added in 2021, then maps the rest of the patchwork and the choice-of-law questions that decide cases before the merits are reached. It covers identity beyond name and face, including the voice cases from Midler and Waits, the persona cases from Carson to White, and the AI statutes that followed, led by Tennessee's ELVIS Act. It then addresses the First Amendment limits, the transformative use test from Comedy III, the Rogers balancing used for expressive titles, the newsworthiness exemption, Lanham Act false endorsement as the federal cousin, and the persistent circuit split over Copyright Act preemption. Finally it explains how Alston and the House settlement turned publicity rights into an operating system for college sports, and names the questions no court has yet answered.
IP and Technology > Right of Publicity | Article | Published 1 October 2024 - Updated 8 April 2026 | Casey Scott McKay - marksy.us
Summary. This article explains the American right of publicity — a state-by-state body of law, invented by a federal judge in 1953 to solve a baseball-card problem, that now governs everything from billboard photos to synthetic voices to college athlete endorsement deals. It traces the doctrine from its privacy roots through Haelan Laboratories v. Topps Chewing Gum, and shows why the split between privacy-rooted and property-rooted regimes still decides who can sue, what damages are available, and whether the right survives death. It works through California Civil Code §§ 3344 and 3344.1 alongside the common-law claim, and New York Civil Rights Law §§ 50 and 51 with the post-mortem right added in 2021, then maps the rest of the patchwork and the choice-of-law questions that decide cases before anyone reaches the merits. It covers identity beyond name and face — the voice cases from Midler to Waits, the persona cases from Carson to White v. Samsung, and the AI statutes that followed, led by Tennessee's ELVIS Act. It then addresses the First Amendment limits, the transformative use test, Rogers balancing, the newsworthiness exemption, Lanham Act false endorsement as the federal cousin, and the circuit split over Copyright Act preemption. Finally it explains how NCAA v. Alston and the House settlement turned publicity rights into the operating system of college sports, and names the questions no court has yet answered.
Keywords: right of publicity · name image and likeness · nil · haelan laboratories v topps · california civil code 3344 · new york civil rights law 50-51 · post-mortem right of publicity · midler v ford · white v samsung · transformative use test · comedy iii · elvis act · digital replica · ai voice cloning · lanham act false endorsement · copyright preemption section 301 · ncaa v alston · house v ncaa settlement · newsworthiness exemption · zacchini
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