Patenting for Inventors Ep. 156 - Face Value: Protecting Your Identity with Name, Image, and Likeness Rights
Illustration by @max_gps
Face Value: Protecting Your Identity with Name, Image, and Likeness Rights
Podcast Transcript:
Hello and welcome to the Patenting for Inventors podcast. I’m your host, Adam Diament, patent attorney and partner at the law firm of Nolan Heimann in Los Angeles, California. This episode is, “Face Value: Protecting Your Identity With Name, Image, and Likeness Rights.” Today we’re going to take a detour from the traditional four intellectual property rights, which are patents, trademarks, copyrights, and trade secrets, and talk about what I call the cousin of traditional intellectual property, which is becoming more and more relevant these days, which are name, image, and likeness rights, also called NIL for short, or you’ll also hear it called, the right of publicity.
This is a topic that used to be mostly about celebrities, athletes, and advertising. But with social media, deepfakes, and the rise of AI-generated content, it now touches just about everyone. So today we’re going to define NIL rights, break them down into their components, and look at some real-world examples.
What Are NIL Rights?
At its core, NIL rights are part of what’s known as the right of publicity, which a legal doctrine that gives individuals the ability to control and profit from the commercial use of their identity.
That identity is typically broken into three components: Name, Image, and Likeness.
This isn’t federal law. The right of publicity is governed by state law, and it varies considerably. Some states, like California and Indiana, recognize strong rights of publicity, even after death. Other states, like New York, only relatively recently modernized their laws.
But regardless of where you are, the principle is generally the same: your identity has commercial value, and if someone wants to use it to promote their product, they need your permission.
The Right to Your Name
Let’s start with the most obvious: your name.
Names carry commercial weight, especially when its associated with reputation, influence, or fame. Unauthorized use of someone’s name in advertising or commercial speech can give rise to a right of publicity claim.
One of the best-known cases involving unauthorized use of a name is Jordan v. Jewel Food Stores.
Jewel-Osco, a grocery store chain, ran a print ad congratulating Michael Jordan on his induction into the Hall of Fame. It was styled like a tribute, but the court held it was commercial speech because the ad included the store’s logo and slogan. Jordan sued for right of publicity violations and won a significant judgment. The takeaway? Even well-meaning name use can cross the line when there’s a commercial benefit involved.
The Right to Your Image
Your image, meaning your actual face or visual likeness, is often the most misused element in the age of social media and digital advertising.
Take, for example the case of White v. Samsung Electronics America.
Vanna White, co-host of Wheel of Fortune, sued Samsung for an ad featuring a robot in a blond wig standing in front of a game board resembling Wheel of Fortune. The ad didn’t use White’s name or face, but the court held that it evoked her image and persona, and was thus a violation of her right of publicity.
Then there’s the case of models whose photos have been used in ads they never consented to.
In Downing v. Abercrombie & Fitch, several surfers sued the clothing company after it published their photo, originally taken for a surfing magazine. They surfers hadn’t given permission for that secondary use. The court sided with the surfers, ruling that use of their images in a commercial context was a misappropriation.
This is why professional models, influencers, and even everyday people should be vigilant about image use—especially now that facial recognition and AI-generated images are creating entirely new legal questions.
The Right to Your Likeness
“Likeness” is a bit broader and trickier. It includes representations that evoke your identity—like a voice, a soundalike, or a character clearly based on you.
One of the landmark cases here is Midler v. Ford Motor Company.
Bette Midler declined to sing in a Ford commercial. So the company hired a soundalike to imitate her voice. She sued, and the court ruled in her favor—saying that her voice was part of her persona that was protected.
In another example, there’s the case of Tom Waits v. Frito-Lay. It’s a similar story. Tom’s raspy, distinctive voice was imitated in a Doritos commercial after he refused to license it. He won over two million in damages. Again, no name or face used, but the likeness, via his voice, was enough.
NIL and the Modern Landscape
With the explosion of social media, NIL rights now affect people who never considered themselves public figures. That includes influencers, streamers, athletes, and really anyone whose identity has commercial potential.
The NCAA’s 2021 policy change allowed college athletes to finally profit from their name, image and likeness. This came after years of lawsuits and pressure, including the Supreme Court’s decision in NCAA v. Alston.
This wasn’t directly a right of publicity case, the Court held that restrictions on education-related benefits violated antitrust laws. The ruling cracked open the door for name, image, and likeness compensation, and the NCAA quickly changed course.
Now athletes are signing deals with brands, launching merch, and licensing their name and image—all activities that would’ve been violations under old NCAA rules.
AI, Deepfakes, and the Future of NIL
With AI and deepfakes it’s now really easy to take someone’s name, image, and likeness. You can clone someone’s voice, face, or even personality. Celebrities and public figures are particularly at risk, but anyone with a digital footprint can be mimicked. The right of publicity is now overlapping with deepfake laws, cybersecurity, and even biometric privacy statutes.
How to Protect Your NIL Rights
Here are a few tips for those looking to safeguard their name, image, or likeness:
Register your trademarks. If your personal brand has commercial value, consider registering your name, slogan, or logo.
Be careful with licensing. Don’t sign away your image rights without understanding the scope. Read the fine print—always.
Use model releases. If you’re photographing or filming others, get their consent in writing. Even casual creators on platforms like YouTube or TikTok can get into trouble without one.
Monitor your digital presence. Tools now exist to detect unauthorized use of images or voice. Consider regular checks if you’re a public figure or content creator.
Consult an attorney. Particularly if your NIL is being used—or if you’re thinking of using someone else’s likeness. A short conversation can prevent a lawsuit.
And by the way, if you want to know how easy it is take someone’s name, image, or likeness, it’s really easy because I just took my own likeness to make this podcast episode. What you’ve been listening to for the whole episode is a cloned version of my voice. It hasn’t actually been me talking, it’s been my AI voice clone talking. Now, I’m allowed to do this because I give permission to myself to make a clone for the purposes of this podcast episode, but if you don’t have permission from the original person to use their voice, then you could be liable for a lot of damages. The clone is pretty good, but I wouldn’t be surprised if you thought this episode sounded a little weird. I think I’ll go back to my old self for future podcast episodes.
Thanks for listening to The Patenting for Inventors Podcast. If you need help navigating intellectual property such as patents, trademarks, copyrights, or business matters, give me a call at 424-281-0162.
Until next time, I’m Adam Diament, and keep on inventing.