Right of Publicity and Personal Brand Toolkit: NIL, Endorsements, and Digital Replicas

By Casey Scott McKay · 2025-11-27

This toolkit is a guided tour of everything in the Marksy library about controlling a person's name, face, voice, and persona as commercial property, organized the way the work actually arrives rather than the way the doctrine is taught. It orients a reader inside a body of law with no federal statute, more than thirty state regimes, and at least six distinct legal systems that fire simultaneously on a single endorsement campaign. It maps the state-by-state patchwork and the choice-of-law question that decides most matters before anyone reaches the merits, the Lanham Act false endorsement claim that functions as the federal cousin, and the contracting stack of releases, licenses, morals clauses, and usage sunsets that prevents the disputes in the first place. It covers the NIL compliance overlay that now sits on top of every college athlete deal, the estate diligence chain and registration prerequisites for post-mortem rights, and the wave of AI voice-and-likeness statutes led by Tennessee's ELVIS Act and California's 2024 digital replica laws. It routes the reader through the First Amendment defenses, the copyright preemption line that tracks the advertising boundary, and the enforcement sequence from platform complaint to injunction to fee award. Every cross-referenced Marksy document is annotated with what it covers, who it is for, and the point in the workflow where you should reach for it, and the toolkit closes with a branching reading path, a primary authorities table, and the forms that carry the paper.

IP and Technology > Right of Publicity | Toolkit | Published 27 November 2025 - Updated 1 April 2026 | Casey Scott McKay - marksy.us

Summary. This is a guided tour of the Marksy library on one subject: controlling a person's name, face, voice, and persona as commercial property. It orients you inside a field with no federal statute, more than thirty state regimes, and at least six legal systems that fire at once on a single endorsement campaign. It maps the state patchwork and the choice-of-law question that usually decides a matter before the merits, the Lanham Act false endorsement claim that stands in for a federal right, the contracting stack that prevents disputes, the NIL compliance overlay on college athlete deals, the estate diligence chain for post-mortem rights, and the AI voice-and-likeness statutes now arriving state by state. Every document below is annotated with what it covers, who it is for, and when in the workflow to reach for it. It closes with a branching reading path, an authorities table, and the forms that carry the paper.

Keywords: right of publicity · name image and likeness · nil · digital replica · voice cloning · false endorsement · lanham act section 43(a) · post-mortem right of publicity · likeness release · endorsement agreement · elvis act · california civil code 3344 · new york civil rights law 50-f · ftc endorsement guides · copyright preemption · transformative use · choice of law · personal brand licensing · no fakes act · deepfake

Start Here

You are in the right place if a human being's identity is about to be used to sell something, or already has been.

That covers more work than it sounds like. It covers the model whose two-year license expired eighteen months ago and whose face is still on a retail endcap. It covers the college sophomore whose $45,000 shoe deal needs to clear an institutional disclosure window, a private clearinghouse, and an athlete-agent statute before anyone posts anything. It covers the estate of a mountaineer who died in 2011 and whose grandson has just discovered a documentary streaming with her name in the title. It covers the marketing team that fine-tuned a model on a retired broadcaster's archived tape and generated forty new ad reads over a weekend.

Those are four different bodies of law that happen to share a name.

This toolkit answers three questions.

Whose law applies, and does the right even exist here? There is no federal right of publicity. There are more than thirty state regimes that disagree about who is protected, what counts as identity, whether the right survives death, and for how long. Choice of law is not a housekeeping question in this field. It is the first substantive question.
What paper do I need, from whom, and what does it have to say? A release is not a license, a license is not an assignment, and a copyright clearance does not clear publicity rights. Most disputes are drafting failures with a two-year fuse.
What do I do when someone uses my client without asking? The enforcement ladder here is unusual, because the strongest claim is often a state-law claim in a jurisdiction with a fee-shifting anti-SLAPP statute pointed straight back at the plaintiff.

If you read only one thing, read Your Face Is Not Public Domain: The Right of Publicity, NIL, and the State-Law Patchwork. It is the doctrinal spine of everything here: the history from Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953), through the California and New York regimes, the voice and persona cases, the four competing First Amendment tests, the copyright preemption split, and the NIL and digital-replica developments. Read it once end to end. Everything below assumes it.

A running example holds this toolkit together. Redshank Outfitters, a Bozeman technical-apparel brand, is launching a national campaign in the spring. It wants four faces: a retired Olympic biathlete under contract, a college distance runner, the estate of a mountaineer who died in 2011, and a synthetic "brand voice" trained on a licensed narration archive. One campaign, four regimes, and four separate ways to lose.

The Field, Mapped: Six Systems Wearing One Name

The right of publicity is usually described as a single tort. In practice a matter is a stack, and the stack fires all at once.

One. The state claim. The core right — control over the commercial exploitation of your identity — is state law, statutory in some states, common law in others, both in California. California runs two statutes and a common-law claim in parallel: Cal. Civ. Code § 3344 for living persons, with a $750 statutory floor and prevailing-party attorney's fees, and Cal. Civ. Code § 3344.1 for deceased personalities. New York, by contrast, has no common-law claim at all. Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984), confined the right to the privacy statute, N.Y. Civ. Rights Law §§ 50-51, which requires written consent for any advertising or trade use. That single word does more work than most drafters realize: an oral permission, a text message, or a course of dealing that would satisfy California is worth nothing in New York.

Two. The federal cousin. Section 43(a)(1)(A) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), reaches uses likely to confuse consumers as to "affiliation, connection, or association" or "sponsorship, or approval." Courts have read that to cover false endorsement, and it is the closest thing to a national identity right. It costs something: you must prove likelihood of confusion, and as a practical matter you must be recognizable to the relevant public. It buys something too: federal jurisdiction under 28 U.S.C. § 1338, the remedies of 15 U.S.C. § 1117, and a claim that does not vary by state line.

Three. The contract. Most identity uses are licensed, and most licensed uses go wrong the same way. The grant is drafted loosely ("all media now known or hereafter devised"), the term is undefined, nobody drafts a sell-off period for printed inventory, and nobody dockets the expiry. The single most common right-of-publicity case in America is the expired release, and the leading authority — Toney v. L'Oréal USA, Inc., 406 F.3d 905 (7th Cir. 2005) — is a case about a hair-relaxer box that stayed on shelves past its license.

Four. The regulatory overlay. Endorsements are advertising, and advertising is regulated. The FTC's Guides Concerning the Use of Endorsements and Testimonials in Advertising, 16 C.F.R. pt. 255, require clear and conspicuous disclosure of material connections; the FTC's rule on consumer reviews and testimonials, 16 C.F.R. pt. 465, adds civil penalty exposure for fake and undisclosed endorsements, including testimonials from people who do not exist. In college sports, a second regulatory layer stacks on top: state NIL statutes, institutional policy, the clearinghouse review created by the House settlement architecture, and athlete-agent regulation under state adoptions of the Revised Uniform Athlete Agents Act and the federal Sports Agent Responsibility and Trust Act, 15 U.S.C. §§ 7801-7807.

Five. The First Amendment. Not every use of a person is a commercial use, and the defenses are genuinely strong. There are four competing frameworks and no consensus: the transformative use test of Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001); Rogers balancing, from Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989); the predominant-use test adopted in Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003); and ad hoc balancing. Which one applies depends on the circuit and sometimes on the medium. And in California, Texas, and roughly thirty other states, an anti-SLAPP motion converts a weak publicity claim into a fee award against the plaintiff.

Six. Copyright. The most consequential structural point in the field: a copyright license does not clear publicity rights, and a publicity release does not clear copyright. The photographer owns the photograph; the subject owns the identity in it; you need both, from different people, in different documents. Section 301(a) of the Copyright Act preempts publicity claims when the plaintiff's real complaint is about the reproduction of a work — In re Jackson, 972 F.3d 25 (2d Cir. 2020); Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017) — but not when identity is used to sell something. Toney, 406 F.3d at 910. The line tracks advertising.

What changed recently, and why this toolkit exists. Two shocks hit this field within three years of each other. In 2021, NCAA v. Alston, 594 U.S. 69 (2021), and the NCAA's interim policy nine days later turned a dormant right held by roughly 500,000 college athletes into an active market — and the House settlement, approved in June 2025, built a private compliance apparatus on top of it. Then generative models made high-quality imitation cheap. Tennessee responded first with the ELVIS Act, amending Tenn. Code Ann. §§ 47-25-1101 to -1108 effective July 1, 2024, to protect voice expressly and, remarkably, to reach the distribution of tools whose primary purpose is cloning a particular person. California followed with AB 1836 and AB 2602, effective January 1, 2025, the second of which added Cal. Lab. Code § 927 — not an IP rule at all, but a mandatory contract term that voids broad replica grants unless the use is described with reasonable specificity and the performer had representation.

Congress has done nothing. The NO FAKES Act has been introduced in successive Congresses without enactment. Until that changes, the operating rule for any national campaign is unglamorous and expensive: clear against the most protective state whose residents will see the work.

Trap. Practitioners trained in trademark and copyright reflexively look for a registration, a filing date, and a federal cause of action. Here there is none of that for living persons — but there are registration prerequisites for post-mortem rights in California and Nevada, and estates skip them constantly. A California estate that never filed the § 3344.1 registration can lose the recovery it was entitled to.

Theme One: The Patchwork, and Getting Choice of Law Right First

Nothing in this field can be answered without knowing whose law applies, and the answer is not "where the ad ran." For living persons, most courts look to the plaintiff's domicile, because the injury is to a personal property interest located where the person is. For deceased personalities, domicile at death governs, and it is dispositive — a New York domiciliary who died in 1975 had no post-mortem right when § 50-f took effect in 2021, because the statute does not reach back.

Redshank's mountaineer died in 2011. Whether her estate can license anything depends entirely on the state whose flag was over her last permanent home, and the answer ranges from a full 70-year right (California) to a 100-year right that expressly protects "distinctive appearance, gestures, or mannerisms" (Indiana) to nothing at all (Massachusetts recognizes no post-mortem right and reaches only name, portrait, or picture).

Your Face Is Not Public Domain: The Right of Publicity, NIL, and the State-Law Patchwork is the article to read before anything else in this section. It contains the nine-state comparison table that most practitioners end up photographing with their phone — source, post-mortem term, and the notable feature of each regime — plus the full treatment of California's three parallel claims and New York's written-consent rule. Reach for it at intake, when you need to know what kind of matter you have before you quote a fee.

Clearing and Licensing Name, Image, and Likeness: A Practitioner's Guide for Brands, Creators, and Athletes is the operational companion. It assumes the doctrine and spends fifteen numbered stages on execution, carrying one national campaign from scoping the use to enforcing against a voice clone. Stage 2 is the one to read on its own: it runs the choice-of-law analysis first, person by person, before a word of the grant is drafted, which is the opposite of how most transactional lawyers sequence it.

Name, Image, and Likeness Clearance Checklist: Releases, Licenses, and Post-Mortem Rights is the working document you actually open on the matter. Eleven phases, with a frame audit that finds every identifiable person in the shot, a triage rule for releases already sitting in the archive, and a deadlines table covering disclosure windows, destruction certificates, limitations periods, and the sixty-day anti-SLAPP clock. Use it as the file's table of contents from day one.

Theme Two: The Federal Claim — False Endorsement Under § 43(a)

When the plaintiff is recognizable and the use suggests a relationship, the Lanham Act claim is often the better instrument. It travels with the campaign across state lines, it carries § 1117 remedies including profits and fees in exceptional cases, and it lands you in federal court without a diversity problem.

The doctrinal work is confusion analysis with the persona substituted for the mark. Kareem Abdul-Jabbar won on an Oldsmobile spot invoking his college record, Abdul-Jabbar v. General Motors Corp., 85 F.3d 407 (9th Cir. 1996); the estate of a broadcaster won where the NFL used his distinctive voice in a program promoting a video game, Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008). The claim is not universally loved — the Sixth and Eleventh Circuits have questioned whether false endorsement is a separate cause of action — and plaintiffs still must clear the zone-of-interests and proximate-cause requirements of Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014).

Trademark Infringement: Proving Likelihood of Confusion is the short orientation to the multifactor test that a false endorsement claim borrows wholesale. It is written for a general audience, which makes it the right thing to send a marketing director who does not understand why "everyone knows it's not really him" is not a defense. Read it before you draft the § 43(a) count.

Consumer Surveys in Trademark Cases: What Eveready and Squirt Actually Measure matters more here than in an ordinary infringement case, because endorsement confusion is almost always a survey question. If your celebrity is famous enough for an Eveready format, use it; if recognition is contested, that choice becomes the case. Read it before you retain anyone.

Commissioning and Attacking a Trademark Survey: A Litigator's Guide to Design, Universe, and Daubert is the execution manual: structuring the engagement so Fed. R. Civ. P. 26(b)(4)(B) and (C) actually protect the draft work, writing a screener that operationalizes the legal universe, and building a control that isolates one variable. In a false endorsement case the control cell is where the fight is — you need a stimulus that removes the identity cue and nothing else.

The Section 2 Bars: Surnames, Geography, Deception, and the First Amendment covers the registration-side mirror image. Section 2(c), 15 U.S.C. § 1052(c), bars registration of a mark identifying a particular living individual without written consent, and the Supreme Court upheld it against a First Amendment challenge in Vidal v. Elster, 602 U.S. 286 (2024). Read it the moment a client proposes filing an application on somebody else's name — that is not a workaround, it is a second dispute.

Choosing a Strong Trademark: The Distinctiveness Spectrum is the counterpart for the client who wants to register their own name as a brand. Personal names are treated as inherently weak and generally need acquired distinctiveness, which is a surprise to nearly every founder and athlete who assumes their name is automatically protectable. Send it at the first branding conversation.

Theme Three: The Paper — Releases, Licenses, and Endorsement Deals

This is where the field is won. Ninety percent of the matters I see would have been prevented by four provisions: a defined term, a defined media list, a sell-off period, and a docketed expiry.

Start by picking the right instrument. A release is a consent and a covenant not to sue — appropriate for a crowd extra, a customer testimonial, a documentary subject. A license is an affirmative grant with scope, term, consideration, and quality controls — appropriate for an endorsement. An assignment transfers the underlying right and is almost always wrong for a living person, because it strips control the person will want back.

Clearing and Licensing Name, Image, and Likeness — returning to it here — supplies the model language for each: the grant of rights, the exclusivity and category definitions, morals and reverse-morals clauses, the usage sunset and sell-off, and the separate digital replica consent that Cal. Lab. Code § 927 now requires as a standalone document. Stages 4 through 8 are the drafting core. Reach for them with a blank page and a signed term sheet.

How to Draft a Trademark License Agreement is short and orienting rather than exhaustive, and it makes the one point a personality-rights lawyer most needs from trademark practice: quality control is not a formality. When a person's name doubles as a mark — and for any athlete, chef, or influencer with a product line, it does — the license has to control the goods or the mark dies.

Drafting a Trademark License That Survives: A Practitioner's Guide to Quality Control, Scope, and Royalties is the long version, fifteen stages carried through one deal, with the royalty machinery — base, net-sales deductions, tiers, minimums, advances, audits — that personality licenses need and rarely get. Reach for it when the endorsement deal grows a product line.

Naked Licensing: How Sloppy Quality Control Kills a Trademark explains the failure mode in the space of a coffee break. It is the document to forward to a client who says the inspection rights are "too aggressive for a friendly deal."

Trademark License Quality Control Checklist: Standards, Inspection, and Recordkeeping is what turns those clauses into a program someone actually runs — sampling cadence, approval workflow, and a license file that survives a Rule 30(b)(6) deposition. Open it ninety days after signature, not two years later.

Trademark License Agreement — Template is the skeleton for the trademark side of a personality deal. Treat it as a frame, not a form: a name-and-likeness license needs a grant clause, territory and media schedule, morals clause, approval rights, and sunset provisions that the base template leaves to you.

Who Owns the Work: Employees, Contractors, Joint Authors, and Work Made for Hire is the document that saves campaigns. Redshank's biathlete signed a likeness license. Redshank still does not own the photographs, because the photographer is a contractor and photographs are not among the nine enumerated commissioned-work categories under 17 U.S.C. § 101. Read it before the shoot, not after.

Transfers, Licenses, and Termination Rights: A Practitioner's Guide to Copyright Ownership Paperwork is the execution manual for the other half of the clearance: § 204(a) signed writings, the scope grid that decides what a license actually covers, and the new-media problem that has cost publishers entire markets. Use it in parallel with the likeness paper, never after it.

Copyright Ownership and Chain-of-Title Checklist: Assignments, Work-for-Hire, and Termination Windows is the audit tool for a client with a decade of campaign assets and no idea who owns them. Run it before an acquisition, a financing, or any archive re-release.

Theme Four: NIL — Publicity Rights as College Sports Infrastructure

NIL is not a new right. It is the old right, finally exercisable, wrapped in a compliance apparatus with no precedent in American IP law.

Redshank's college runner is the hardest of its four faces, because her deal has to survive four review layers before it survives a court. Her state's NIL statute may restrict categories. Her institution's policy sets a disclosure window, often days. The House clearinghouse reviews third-party deals at or above the $600 threshold for a "valid business purpose" and a defensible compensation range. And if anyone is negotiating on her behalf, athlete-agent regulation applies: SPARTA, 15 U.S.C. § 7802, makes it an unfair or deceptive act to provide anything of value before the agency contract is signed or to omit the required conspicuous warning, and most states have adopted a version of the Revised Uniform Athlete Agents Act on top of that.

Then the FTC layer. An unlabeled athlete post is an advertising problem before it is ever a publicity problem, and both the brand and the athlete are exposed.

Clearing and Licensing Name, Image, and Likeness, Stage 9, is the piece to read here. It gives the four-layer compliance table with the deadline attached to each layer, diligence questions for booster-funded collectives, the Talent Agencies Act exposure that unlicensed "NIL advisors" in California do not know they have, and model compliance covenants — disclosure, compliance contingency, restricted categories, and endorsement disclosure — you can drop into a deal. It also handles minors, where skipping court approval under Cal. Fam. Code § 6750 et seq. or N.Y. Arts & Cult. Aff. Law § 35.03 makes the whole agreement voidable at majority.

Name, Image, and Likeness Clearance Checklist, Phase 6, is the same material as line items: institutional disclosure, clearinghouse submission, Coogan trust set-asides, and the agent statutes that void contracts. Use it to run the file; use the guide to draft.

Trademark Clearance Searching: What a Knockout Search Can and Cannot Tell You enters the moment the deal includes a co-branded product — a colorway, a signature line, a nickname on a hangtag. That is a trademark, and it needs its own clearance on the ordinary schedule. Read it before the product name is announced, because athlete deals move faster than searches.

Practice tip. Draft NIL deliverables so they are genuine, specific, and documentable: named posts, named dates, named appearances, named assets. The clearinghouse's "valid business purpose" review is designed to catch payments that are pay-for-play wearing an endorsement costume. Vague deliverables are the tell.

Theme Five: Death, Estates, and Post-Mortem Rights

Post-mortem work fails on diligence, not doctrine. Four things have to be true before an estate can grant anything, and estates routinely cannot prove the second or the fourth.

The decedent's domicile at death is in a state with a post-mortem right.
The term has not run — 10 years in Washington for ordinary individuals, 40 in New York, 50 in Texas and Nevada, 60 in Ohio, 70 in California, 100 in Indiana, and in Tennessee an initial 10 years extended indefinitely by continuous use but lapsing after two years of non-use.
The chain from decedent to grantor is unbroken through the will, the residuary clause, and any intervening transfers.
Where the state requires it, the successor-in-interest registration has actually been filed — California under § 3344.1 and Nevada with the Secretary of State are the ones that bite.

Redshank's mountaineer died a Tennessee domiciliary in 2011 with no commercial exploitation since 2016. Under the Tennessee non-use provision, the right may already have lapsed. That is a two-hour research question that saves a six-figure license fee.

Name, Image, and Likeness Clearance Checklist, Phase 7, walks the estate chain in order, with domicile proof, the state-by-state term table, and the registration prerequisites. It is the phase to run before you send the estate a term sheet, because the diligence changes what you are willing to pay.

Your Face Is Not Public Domain supplies the doctrinal background — including why Tennessee's statute exists at all, after the Sixth Circuit held in Memphis Development Foundation v. Factors Etc., Inc., 616 F.2d 956 (6th Cir. 1980), that Elvis Presley's right died with him. Read the post-mortem sections when you need to explain to an heir why the answer differs from what they read online.

Trademark Assignment Agreement — Template is the closest form in the library for the transfer step when an estate consolidates rights into a licensing entity. Adapt it carefully: publicity rights are not trademarks, and the anti-assignment-in-gross concerns of 15 U.S.C. § 1060 do not map cleanly, but the recital and warranty architecture is reusable.

Theme Six: Digital Replicas, Synthetic Voice, and AI

This is the fastest-moving corner of the field and the one where the corpus is deepest, because the exposure runs in two directions at once: your client's identity may be cloned, and your client's AI pipeline may be cloning someone else.

The doctrinal anchor is older than the technology. Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), and Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), held that deliberate imitation of a distinctive voice to sell a product is itself the appropriation. A model does at scale exactly what the sound-alike singer did in a studio, and the casting-note evidence that made Waits devastating on punitive damages now lives in prompt logs.

Redshank's synthetic brand voice is the classic trap. It licensed the narration archive and owns the recordings outright. That clears copyright and nothing else. Facenda is close to on point: using a distinctive voice to promote a product is a publicity use, not a reproduction. If the narrator is a Tennessee resident, the ELVIS Act reaches the synthesis directly and may reach the vendor that built the cloning tool. If California law applies to the 2013 talent agreement, Cal. Lab. Code § 927 voids the "all media now known or later devised" grant for replica uses unless the replica was described with reasonable specificity.

Who Owns What the Machine Made: Copyright Authorship in the Age of Generative AI answers the upstream question this toolkit deliberately does not: whether anybody owns the output at all. It traces the human authorship requirement from Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), through Thaler v. Perlmutter and the Copyright Office's registration guidance, and it explains the ownership gap — the common situation in which no one can stop copying of a generated asset. Read it when a client asks who owns the synthetic spokesperson.

Deploying Generative AI Without Losing Your IP: A Practitioner's Guide to Authorship, Disclosure, and Contracts is the twelve-stage operational build. For publicity purposes, Stage 7 (the vendor agreement redline, with ask, fallback, and walk-away positions on training rights, output ownership, and indemnity scope) and Stage 10 (clearing the generated brand, voice, and face) are the ones that matter. Read them before signing a model vendor contract, because the indemnity you are relying on almost certainly excludes right-of-publicity claims.

Generative AI IP Compliance Checklist: Policy, Provenance, Disclosure, and Contracts is the eleven-phase implementation, and Phase 9 — clearing output brands, marks, voices, faces, and audio — is the phase this toolkit's readers will use most. Its provenance and prompt-log requirements do double duty: they preserve copyright and they prove you did not prompt with a celebrity's name.

Trap. Prompt logs cut both ways. The record that proves human authorship for registration purposes is the same record a plaintiff subpoenas to show your art director typed a famous person's name. Write the AI policy knowing both audiences will read the logs.

Theme Seven: When the Use Is Expression, Not Advertising

The defenses here are real, and a plaintiff's lawyer who ignores them files a case that ends in a fee award.

The frameworks conflict. California and much of the Ninth and Third Circuits apply transformative use from Comedy III, which produced the athlete-avatar losses in In re NCAA Student-Athlete Name & Likeness Licensing Litigation, 724 F.3d 1268 (9th Cir. 2013), and Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013). The Sixth Circuit found a Tiger Woods painting protected in ETW Corp. v. Jireh Publishing, Inc., 332 F.3d 915 (6th Cir. 2003). The Tenth Circuit protected parody trading cards in Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996). And the outer limit remains Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the only Supreme Court decision in the field, which held the First Amendment does not privilege broadcasting a performer's entire act.

Two complications now sit on top. Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508 (2023), reframed transformativeness around purpose and justification, and Comedy III borrowed its test from the older version. And Jack Daniel's Properties, Inc. v. VIP Products LLC, 599 U.S. 140 (2023), narrowed Rogers at the source, which matters because several circuits apply Rogers to publicity claims on borrowed authority.

Rogers, Jack Daniel's, and the Trademark Parody Problem is the clearest account in the library of what survived. It traces the artistic-relevance test from movie titles to dog toys, explains the new threshold source-identifier question, and covers the dilution exclusions in 15 U.S.C. § 1125(c)(3). Read it whenever the accused use is a film, a game, a song, a book, or merchandise sold alongside any of those.

Litigating Expressive-Use Trademark Disputes: A Practitioner's Guide After Jack Daniel's v. VIP Products is the procedural manual, and Stage 7 — anti-SLAPP, where it lives, what it reaches, and what it costs to get wrong — is required reading for anyone filing a publicity claim in California. A special motion to strike under Cal. Code Civ. Proc. § 425.16 is due within sixty days of service, stays discovery, and carries mandatory fees to a prevailing defendant. Read Stage 7 before you file, not after you are served with the motion.

Expressive Use and Parody Risk Checklist: Clearing Creative Uses of Third-Party Marks is the pre-launch screen for the other chair. Phase 8 explicitly routes the right-of-publicity claim that travels alongside a trademark claim, and Phase 9 freezes the intent record before launch — which is the phase that decides the case two years later. Run it on any creative project that puts a real person in the frame.

Fair Use After Warhol: Transformative Purpose, Market Harm, and the Four Factors is the copyright-side companion, and it matters here because the California transformative-use test is a borrowed cousin of factor one. Read it when you need to predict how a California court will handle a post-Warhol publicity defense.

Descriptive and Nominative Fair Use: When You Can Legally Use Someone Else's Trademark covers the referential use question that recurs in comparative advertising and journalism about a person. It is the right read when a client wants to name a competitor's endorser in an ad.

Sending an Effective Cease-and-Desist Letter and Responding to a Cease-and-Desist Letter are the short procedural bookends. The first is worth reading before you send anything into a jurisdiction with fee-shifting; the second, before a client with a documentary or a satire panics and takes it down. Both are brief by design — the substantive strategy lives in the litigation guides above.

Theme Eight: Enforcement — Platforms, Demands, and Money

The enforcement path here diverges from trademark enforcement in one important way: the DMCA does not help you. Section 512's safe harbors run to copyright only, and a right-of-publicity complaint is not a takedown notice. Most platform removals of unauthorized likeness content happen under private terms of service.

Whether you can sue the platform at all is an open circuit split. The Ninth Circuit reads the § 230(e)(2) intellectual property carve-out to cover federal IP only, so state publicity claims are barred. Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007). The Third Circuit rejected that reading in a case brought by a Philadelphia news anchor whose photograph appeared in ads served on Facebook. Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021).

Online Brand Protection Toolkit: Domains, Marketplaces, Platforms, and Search Ads maps the six surfaces where identity abuse actually appears and routes each to the right forum, clock, and cost. For personality matters it is more useful than the case law, because the practical remedy for an unlicensed merch drop or an impersonation account is a platform complaint, not a lawsuit.

Brand Enforcement Toolkit: Watching, Warning, and Escalating supplies the graduated ladder and prices each rung, including the declaratory-judgment exposure a demand letter creates under MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007). Read it before the first letter goes out on a matter where the other side has counsel and a First Amendment argument.

The DMCA Safe Harbor: How Section 512 Shields Platforms and Binds Rights Holders explains why the tool everyone reaches for does not fit — and when it does, because a deepfake built on a copyrighted photograph often supports a genuine copyright claim alongside the publicity claim.

Sending and Fighting a DMCA Takedown: A Practitioner's Guide to Notices, Counter-Notices, and Misrepresentation Claims is where to go once you have identified a real copyright hook. It covers chain of title, the Lenz fair use look, and the misrepresentation exposure under 17 U.S.C. § 512(f) that a publicity-motivated notice invites.

Cybersquatting and the ACPA covers a claim frequently overlooked in personality matters: 15 U.S.C. § 1129 provides a separate cause of action for registering a living person's name as a domain with intent to profit by selling it. Read it when the problem is a domain rather than a post.

Filing a UDRP Complaint to Recover a Domain is the cheaper, faster alternative when the name functions as a common-law mark. Personal-name UDRP cases turn on whether the complainant can show trademark rights in the name, so read this together with the distinctiveness materials above.

Moving for a TRO or Preliminary Injunction in a Trademark Case: A Practitioner's Guide is the first-thirty-days manual when something must stop now — a campaign in flight, a deepfake ad buy, an unauthorized documentary release. The declaration package and the bond analysis under Fed. R. Civ. P. 65(c) transfer directly to publicity matters.

Trademark Monetary Recovery Checklist: Proof of Profits, Damages, Corrective Advertising, and Fees is the money sequence. In a publicity case the fair-market-license measure has to be built from comparables, and this checklist's financial discovery and Rule 30(b)(6) sections are the fastest route to the gross revenue number the disgorgement theory needs.

Pre-Litigation Enforcement Checklist and Federal Court vs. TTAB: Where to Bring Your Dispute handle the forum decision. The TTAB is irrelevant to a pure publicity claim but very relevant when the defendant has filed an application on your client's name — a § 2(c) opposition is often the cheapest available remedy.

A Suggested Reading Path

Start with the article. After that, branch by situation.

Everyone, first: Your Face Is Not Public Domain.

If you are clearing a campaign that features real people:

Name, Image, and Likeness Clearance Checklist — Phases 1 through 4, before the shoot.
Clearing and Licensing Name, Image, and Likeness — Stages 2 and 4 through 8, to draft.
Who Owns the Work and Transfers, Licenses, and Termination Rights — for the photographer, videographer, and composer.
Trademark License Agreement — Template — for the product-line extension.

If the subject is a college athlete: add Stage 9 of the guide and Phase 6 of the checklist, then Trademark Clearance Searching if there is a co-branded product.

If the subject is deceased: Phase 7 of the checklist first, and stop the deal until domicile at death and the registration status are documented.

If the use is synthetic: Who Owns What the Machine Made, then Stages 7 and 10 of Deploying Generative AI Without Losing Your IP, then Phase 9 of the Generative AI IP Compliance Checklist.

If the use is expressive and you are the defendant: Rogers, Jack Daniel's, and the Trademark Parody Problem, then Stage 7 (anti-SLAPP) of Litigating Expressive-Use Trademark Disputes, then Responding to a Cease-and-Desist Letter.

If you are enforcing: Brand Enforcement Toolkit for the ladder, Online Brand Protection Toolkit for the platform route, Moving for a TRO or Preliminary Injunction if it must stop, and Trademark Monetary Recovery Checklist for the number.

Primary Authorities

| Authority | One-line holding or rule | | --- | --- | | Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953) | Recognizes an assignable "right of publicity" separate from privacy | | Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) | First Amendment does not privilege broadcasting a performer's entire act | | Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988) | Deliberate imitation of a distinctive voice to sell a product is actionable | | Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992) | Affirms voice misappropriation and punitive damages on intent evidence | | White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992) | Persona can be appropriated without name, likeness, or voice | | Comedy III Prods., Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001) | Adopts the transformative use test for First Amendment defenses | | Doe v. TCI Cablevision, 110 S.W.3d 363 (Mo. 2003) | Adopts the predominant-use test | | ETW Corp. v. Jireh Publ'g, Inc., 332 F.3d 915 (6th Cir. 2003) | Artistic depiction of an athlete protected against publicity and Lanham Act claims | | In re NCAA Student-Athlete Name & Likeness Licensing Litig., 724 F.3d 1268 (9th Cir. 2013) | Realistic athlete avatars are not transformative | | Hart v. Electronic Arts, Inc., 717 F.3d 141 (3d Cir. 2013) | Same result in the Third Circuit; adopts transformative use | | Jordan v. Jewel Food Stores, Inc., 743 F.3d 509 (7th Cir. 2014) | A branded congratulatory ad is commercial speech | | Toney v. L'Oréal USA, Inc., 406 F.3d 905 (7th Cir. 2005) | No § 301 preemption where identity is used in advertising past a release | | Maloney v. T3Media, Inc., 853 F.3d 1004 (9th Cir. 2017) | Claims aimed at distribution of copyrighted images are preempted | | In re Jackson, 972 F.3d 25 (2d Cir. 2020) | Publicity claim aimed at reproduction of a recording is preempted | | Abdul-Jabbar v. Gen. Motors Corp., 85 F.3d 407 (9th Cir. 1996) | False endorsement under § 43(a) reaches use of a former name | | Facenda v. N.F.L. Films, Inc., 542 F.3d 1007 (3d Cir. 2008) | Promotional use of a distinctive voice supports § 43(a) and is not preempted | | Lexmark Int'l, Inc. v. Static Control Components, Inc., 572 U.S. 118 (2014) | Zone-of-interests and proximate-cause limits on § 43(a) standing | | Hepp v. Facebook, 14 F.4th 204 (3d Cir. 2021) | § 230(e)(2) carve-out covers state IP, splitting with Perfect 10 v. CCBill | | NCAA v. Alston, 594 U.S. 69 (2021) | NCAA compensation limits get ordinary rule-of-reason review | | Vidal v. Elster, 602 U.S. 286 (2024) | Lanham Act § 2(c) names clause survives First Amendment challenge | | Jack Daniel's Props., Inc. v. VIP Prods. LLC, 599 U.S. 140 (2023) | Rogers does not apply where the accused designation is used as a source identifier | | 15 U.S.C. § 1125(a)(1)(A) | False endorsement: confusion as to affiliation, connection, sponsorship, or approval | | 15 U.S.C. § 1052(c) | No registration of a living individual's name without written consent | | 17 U.S.C. § 301(a) | Preempts state rights equivalent to § 106 rights in copyrightable subject matter | | 47 U.S.C. § 230(c)(1), (e)(2) | Platform immunity, with an intellectual property carve-out the circuits read differently | | Cal. Civ. Code § 3344 | Living-person claim; $750 statutory floor, profits, prevailing-party fees | | Cal. Civ. Code § 3344.1 | 70-year post-mortem right; registration prerequisite; AB 1836 replica limits | | Cal. Lab. Code § 927 | Voids replica provisions absent specificity and professional representation | | N.Y. Civ. Rights Law §§ 50-51 | Written consent required for advertising or trade use of a living person | | N.Y. Civ. Rights Law § 50-f | 40-year post-mortem property right; digital replica protection for performers | | Tenn. Code Ann. §§ 47-25-1101 to -1108 (ELVIS Act) | Protects voice expressly; reaches tools whose primary purpose is cloning a person | | 16 C.F.R. pt. 255 | FTC Endorsement Guides: clear and conspicuous material-connection disclosure | | 16 C.F.R. pt. 465 | FTC rule on reviews and testimonials; civil penalties for fake endorsements | | 15 U.S.C. §§ 7801-7807 (SPARTA) | Athlete-agent conduct rules and required contract warning | | Cal. Code Civ. Proc. § 425.16 | Anti-SLAPP special motion to strike; 60-day clock; mandatory defense fees | | Restatement (Third) of Unfair Competition §§ 46-49 (1995) | The default appropriation rule and its privileges in states without a statute |

Forms and Templates

The Marksy form library was built for trademark practice, so treat each of these as a frame you adapt rather than a personality-rights form you sign.

Trademark License Agreement — Template — the base for any deal where a person's name also functions as a mark. Add the grant of name, image, likeness, and voice; a territory-and-media schedule; approval rights over each asset; a morals clause; a usage sunset; and a sell-off period for physical inventory.

Trademark Assignment Agreement — Template — for estate consolidation and for transferring the trademark side of a personality brand in a deal. Do not use it to take an outright assignment of a living person's publicity rights without thinking hard about what control the person retains.

Trademark Cease-and-Desist Letter — Template — the starting frame for an unauthorized-use demand. Add the state statutory citation, the specific statutory damages exposure, and a preservation demand; delete anything that reads as a threat over expressive content unless you have priced the anti-SLAPP risk.

Trademark Coexistence Agreement — Template — useful in the recurring situation where two people genuinely share a name and both have built businesses on it. Field-of-use and channel limits do the work.

Related Toolkits and Checklists

Fair Use and Permissions Toolkit: Clearing Copyright, Trademark, and Publicity Rights is the nearest neighbor and the one to read next. Where this toolkit organizes around the person, that one organizes around the clearance decision across all three rights at once — the right structure when you are vetting a single asset rather than a whole campaign.

AI, Content, and IP Toolkit: Training Data, Generated Works, and the Ownership Gap covers the input side of the synthetic-likeness problem: what a model was trained on, whether that is fair use, and what a vendor will actually stand behind. Pair it with Theme Six above.

Music, Film, and Creative Industry IP Toolkit is the production-side companion. Entertainment matters generate the densest publicity questions — crowd shots, tattoos, archival footage, sound-alike cues — and this is where the clearance workflows for each live.

Trademark Transactions Toolkit: Licensing, Assignment, and Coexistence answers the question underneath every personality license: who controls the goodwill after the ink dries. Read it when a personal brand becomes an operating business.

Trademark Defenses Toolkit: Fair Use, Free Speech, Priority, Abandonment, and Estoppel is the defense-side survey, and its free-speech material is the fastest orientation for a documentary producer or satirist who has just been threatened.

Evidence and Expert Witness Toolkit for Trademark and Copyright Disputes covers the proof problems a publicity case shares with trademark: recognition surveys, damages accountants reconstructing a fair-market license, and the Fed. R. Evid. 702 machinery that decides whether anyone hears them.

Website and App Launch Legal Checklist: IP, Terms, Privacy, and Compliance matters because user-generated likeness content is a launch problem, not a litigation problem. Its assent-screen, contractor-assignment, and repeat-infringer sections are the ones to run.