The world of NIL is evolving and has forever changed the landscape of student athletics.  In a time where building a personal brand on social media has proven lucrative, clarifying the role of IP in NIL is a major cornerstone for student-athletes to understand and leverage.

What is Intellectual Property (IP)?

Intellectual Property (IP) is a legal concept that covers an array of subject matters, but in its truest essence, IP can be defined as intangible creations of the mind that are eligible for exclusive ownership rights and other legal protections.

IP notably encompasses Patents, Trademarks, Copyrights, and Trade Secrets.  Given the personal branding strategies and commercial value of student-athletes, trademarks and copyrights squarely intersect with NIL considerations.

What is Name, Image, and Likeness (NIL)?

Name, Image, and Likeness (NIL) is a concept that extends the elements of the common law right of publicity to student-athletes; thereby, allowing student-athletes the right to control and exploit the commercial value of their status as student-athletes and receive compensation for the use of their name, image, and likeness. 

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In 2021, the Supreme Court decided that the National Collegiate Athletic Association’s (NCAA) prohibition of education-related compensation violated U.S. federal antitrust laws. Thereafter, the NCAA decided to allow student-athletes to receive compensation for their NIL.  In response, individual colleges and universities around the country are building out their NIL policies.  Similarly, individual states across the U.S. are providing guidance and creating laws that clarify how students may engage in NIL deals and maintain their athletic eligibility at the high school and/or collegiate levels. 

What is the Right of Publicity?

The right of publicity is one’s right to control and protect their name, image, likeness, voice, and photos from wrongful appropriation or unauthorized use.  Simply stated, the right of publicity is designed to protect a person’s commercial interest in their identity.  Right of publicity is generally regarded as falling under the umbrella of Intellectual Property law, although there is no federal right of publicity legal framework.  Overall, it is widely accepted that there is an inextricable relationship between the right of publicity and IP, given the parallel considerations that the right of publicity shares with copyright law (e.g., proper licensing) and trademark law (e.g., preventing misappropriation).
 
The right of publicity is a creature of state law.  Some states do not have a right of publicity statue and other states vary as to the specific boundaries and protections offered under the right of publicity.  Some states have extended the right to control and protect one’s identity to aspects other than just name, image, and likeness.  For example, in California, the right of publicity extends to a signature (Cal. Civ. Code §§ 3344(a) and 3344.1(a)(1)) and in Indiana the right extends to distinctive appearance, gestures, and mannerisms (Ind. Code § 32-36-1-7)).  Likewise, the US Court of Appeals for the Ninth Circuit has held that the use of a combination of personal elements that identify a particular persona, such as manner of dress, hair style, and physical objects, can violate California’s common law right of publicity (see White v. Samsung Elecs. Am. Inc., 971 F.2d 1395, 1399 (9th Cir. 1992) (as amended on Aug. 19, 1992)).
 
NIL rights for student-athletes are akin to a celebrity’s right of publicity.  Celebrities are widely accepted as individuals with identities that carry a clearly quantifiable commercial value.  With the rise of social media, personal branding, influencer culture, and endorsement opportunities, it is apparent now, more than ever before, that the student-athletes are celebrities too and they deserve compensation for the sweat equity they invest to shape their individual athletic brands.
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The Role of IP in NIL

Regarding identity-related IP, if the celebrity or student-athlete has not used their identity as a discernible trademark, identifying a particular class of goods or service, federal trademark law does not offer protection to the celebrity’s or student-athlete’s identity.  However, many celebrities and some student-athletes actually do use their identity as discernible trademarks.  In such cases, the student-athlete may leverage federal trademark law to protect their name, identity or elements of their identity.  Securing IP rights through federal registration, as soon as possible and before entering NIL deals, may offer the needed protection for building an athletic brand made to last.

Have questions? ContactAttorney Holder for your IP, Business, and NIL needs.