By: Nick Georgelis, Staff Writer
Photo Courtesy of Pixaby.com
In 2021, college athletes started legally profiting from their name, image, and likeness (NIL).[1] Athletes across the country such as Caleb Williams, Livvy Dunne, and Bronny James, all began to take advantage of this with NIL valuations eclipsing $2.8 million.[2] This landmark change came after the Supreme Court’s unanimous decision in NCAA v. Alston, where the Court established that the National Collegiate Athletic Association’s (NCAA) restriction of student compensation violated the Sherman Act.[3] Thus, with Justice Gorsuch writing the unanimous opinion, it opened the doors for NIL endorsement deals, instantly creating a new industry worth billions of dollars.[4] NIL deals are not only limited to college sports, they extend to many other areas of law as well.
Name, image, and likeness are rooted in intellectual property law, specifically in a modern right known as the right of publicity.[5] The American Bar Association (ABA) defines the right of publicity as, “the inherent right to control the commercial use of one’s identity.”[6] As of 2020, only 35 states recognize the right of publicity, either by statute or common law, yet the Supreme Court has only addressed the right of publicity once, in Zacchini v. Scripps-Howard Broadcasting Co.[7] In Zacchini, the Court determined that a performer had the right to prevent his act from being recorded and broadcasted to the public because of his inherent right of publicity.[8]
Although the right of publicity has grown within the last century, there is still no federal law to address the issues related to it. For example, due to technology advancement, the right of publicity is no longer only for athletes, actors, or celebrities.[9] Thus, the need for a more concrete federal guideline continues to grow.
Nationally recognized professor of law, Jennifer E. Rothman, specializes in the right of publicity and highlights the advantages and disadvantages of a potential federal publicity law in numerous writings.[10] Within her writing, the first main concern that she raises is the advancement of artificial intelligence (AI).[11] According to Professor Rothman, AI provides everyone with great opportunities; however, it also provides the opportunity to replicate someone’s name, image, and likeness to an incredible degree.[12] Professor Rothman posits that any federal law should include statutory damages to allow ordinary people to recover from the use of their personality without permission, regardless of the commercial value of their name, image, and likeness.[13]
A second concern that Rothman raises is the potential conflict a federal publicity law will have on other rights such as the First Amendment.[14] Stricter publicity laws will potentially lead to a more limited form of speech, art, and consumption in society. Both the courts and legislature have not addressed the balance between publicity laws and one’s freedom of speech and expression.[15] Jurisdictions vary on the application of publicity laws and the First Amendment, making it very difficult to balance these two important rights.[16]
It will become necessary to better define the individual protections related to name, image, and likeness rights. There is currently nothing that addresses the right of publicity concerning the increase of NIL deals, AI, or other personality issues on a federal level.
Currently, the Senate has proposed the No Fakes Act, which seeks to regulate the use of unauthorized AI, given the increase in technological capabilities.[17] NIL deals continue to create new industries, specifically in college athletics. Just as it has for decades, it is likely that the right of publicity will continue to evolve as the importance of such rights increases.
[1] https://harvardlawreview.org/print/vol-135/ncaa-v-alston/
[2] https://www.on3.com/nil/rankings/
[3] https://harvardlawreview.org/print/vol-135/ncaa-v-alston/
[4] Id.
[5] https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law/#27
[6] Id.
[7] Id.
[8] Id.
[9] https://deliverypdf.ssrn.com/delivery.php?ID=283125078096103103084110106125114067025005033082061059074069073094081070107114066111126106001127041058000010097119085000113070025054009058001006115003092125099024020014042119124116018085088085113110124071003082003075067088112066096083118099094093021&EXT=pdf&INDEX=TRUE
[10] https://www.law.upenn.edu/faculty/rothmj
[11] https://rightofpublicityroadmap.com/wp-content/uploads/2023/10/Prof-Rothman-Comments-to-Copyright-Office-on-Right-of-Publicity-and-AI_October-2023.pdf
[12] Id.
[13] Id.
[14] Id.
[15] https://deliverypdf.ssrn.com/delivery.php?ID=911094067103021121098091117097003070118073090032074069006099020095003085030021094078011033103127040058058102124020090125017092056044039040015106092120030029064099060033039092092083082025107084012103093074083084084075002085024086017104075097088116118&EXT=pdf&INDEX=TRUE
[16] Id.
[17] https://www.theartnewspaper.com/2023/10/17/artificial-intelligence-no-fakes-act-us-legislation-non-concensual-likeness
