As an NCAA student-athlete, you are entitled to the “right of publicity.” But what does that really mean? The International Trademark Association defines the right of publicity as “an intellectual property right that protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit.” Let’s break that down a little further:
What are intellectual property rights?
Intellectual property can broadly be described as any intangible, valuable asset. Something you cannot hold in your hand, but has value. Intellectual property includes trademarks (logos, slogans, nicknames), patents (inventions), and copyrights (artistic works like songs or books). Michael Jordan, our regular intellectual property example, might have trademarks for the Jumpman logo, the letters “MJ” and the number 23. He may hold patents for the designs of the Jordan brand sneakers. Lastly, he likely owns copyrights for the books he has written, like Driven from Within. As a student-athlete, your intellectual property includes: your persona, your name and nickname, image, likeness, signature, logo or symbol, and any other unique identifiers. The main right that you have as an intellectual property owner is the exclusion of others. Other people or companies cannot use your intellectual property without your permission. In other words, no one can use your name, image or likeness, or other intellectual property, without you allowing them to.
What is misappropriation of your name, likeness, or other indicia of personal identity?
Misappropriation of your name, likeness, or other indicia of personal identity is fairly straightforward. Simply put, it is someone utilizing your name, image or persona without your permission. It can include a person or company using your NIL on their website, on clothing and apparel, or any other form that is not authorized by you.
What does commercial benefit mean?
In order to satisfy the commercial benefit requirement, the person or company misappropriating your NIL must be doing so for the purposes of making money. If they are selling products or services on their website, or selling clothing or apparel with your image, they are doing so for commercial benefit. If someone has posted a picture of you on their social media or made apparel with your name on it only for their personal use (unrelated to any commercial transactions), the commercial benefit requirement has not been satisfied, and you will not have a valid right of publicity claim against them.
How is the right of publicity different from my trademark rights?
Right of publicity is a state law claim (and differs sometimes from state to state), while trademark claims are federal claims. While the two are similar, they are not exactly identical. Your right of publicity is related to your commercial value as an individual—your “persona”—while your trademark rights are tied to any logos, symbols, words or phrases that you use in connection with products or services. The two are not exclusive of each other. It is possible that someone can violate your right of publicity and your trademark rights at the same time. In fact, it’s quite common.
What about news and media?
News and media are free from right of publicity claims when they are using your name, image or likeness to report on newsworthy events. As a student-athlete, what you do is newsworthy! Both on and off the field, there is a public interest in what you are doing. Unless a news outlet is asserting that you have endorsed their publication when you have not, you will not have a valid right of publicity claim against them, even if all of the elements of a right of publicity claim have been met. This is because of the First Amendment, which protects the freedom of the press.
By Joshua Frieser
Joshua M. Frieser, Esq. is a college sports lawyer and Principal Attorney at Frieser Legal. His practice is focused on the representation of college athletes and working to solve their unique legal needs. Josh represents college athletes in formal NCAA regulatory proceedings and NIL licensing agreements, as well as in related intellectual property and business planning matters.
