Maintaining Control Over Name, Image, and Likeness

Leah George

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Your Identity, Your Asset: The Value of Protecting Your Name, Image, and Likeness

by: Leah George of Caesar Rivise, PC -

Monday, September 30, 2024

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The value of one’s name, image, and likeness (NIL) has never been more significant than in today’s advanced technological age. For those in the public eye, protecting these rights is essential to maintaining control over their personal brand and ensuring they receive fair compensation for their work and identity.

A notable case that underscores the importance of NIL rights is the recent lawsuit involving rapper T.I. Harris and his wife, singer-songwriter Tameka “Tiny” Harris. [1] On September 23, 2024, a California federal jury awarded the couple a staggering $71 million in their lawsuit against toy company MGA Entertainment (MGA). [2] The case centered around MGA’s L.O.L. Surprise! O.M.G. line of dolls. T.I. and Tiny alleged that seven of the dolls in the line misappropriated the name and likeness of a teen pop group Tiny helped create in 2009 called the OMG Girlz. [2-3] The couple also brought a claim of trade dress infringement against MGA over the same doll line. [2]

At the height of their popularity, the OMG Girlz were known for their unique fashion and colorful hairstyles, attributes the Harrises claimed MGA copied. [4] The three original members of the OMG Girlz testified at trial that MGA’s L.O.L Surprise! O.M.G. dolls copied the band members’ looks from certain public events they attended. [5] Attorneys for T.I. and Tiny also cited social media posts from fans who assumed the dolls were inspired by the OMG Girlz because they looked so similar.

The OMG Girlz broke up in 2015, just six years after their formation. [3] The group released several albums during their time together, appeared in one of T.I.’s music videos, and were featured on shows on BET and VH1. At trial, MGA disputed that its dolls misappropriated the identity of the music group, arguing that the dolls would not be mistaken for the “short-lived” band and that the disbanded group suffered no actual harm or lost business opportunities.

After a three-week trial, the California jury found in favor of T.I. and Tiny on both the misappropriation of name and likeness and trade dress infringement claims. [2] The jury awarded the couple $17.8 million in compensatory damages and $53.6 million in punitive damages on the misappropriation claim alone. The court will decide punitive damages on the trade dress infringement claim at a later date.

Right of Publicity

The MGA case highlights how valuable NIL rights can be and the substantial financial repercussions of their infringement. Right of publicity laws play a crucial role in protecting NIL rights. Often referred to generally as “NIL” laws, right of publicity laws concern the right to control and profit from the commercial use of one’s own identity. [6] The right protects various aspects of personal identity, which may include one’s name, nickname, voice, signature, image, likeness, or other distinctive identifiers, depending on the state. [7]

The right of publicity is governed by state law. [6] The majority of states recognize the right, either by statute, common law, or both sources of law. [8] States without right of publicity laws may protect against unauthorized use of one’s name, image, and likeness through right of privacy laws. [6] At this time, there is no federal statute or case law recognizing a federal right of publicity. [7]

The GMA lawsuit involved California right of publicity laws. California is one of the states that recognize a statutory right of publicity, which provides as follows:

Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.

[9] While some states’ right of publicity statutes resemble California’s, many key aspects of right of publicity laws vary by state. [10] Notably, some states place restrictions on which individuals qualify for right of publicity protection. For example, in certain jurisdictions, right of publicity protection extends only to public figures. Additionally, while the majority of jurisdictions recognize a postmortem right of publicity allowing heirs to control the commercial use of a decedent’s identity, other jurisdictions recognize rights of publicity exclusively for the living.

Evolving Landscape

Right of publicity laws and NIL protections are continually evolving. The decision in the MGA case comes just three years after an important NCAA rule change allowing college athletes to earn money from their name, image, and likeness. [11] The rule change is a significant shift from previous rules that prohibited such activities. Collegiate athletes can now earn money from NIL activities, including social media endorsements, autograph signings, and commercial appearances, so long as the athletes follow the rules of their college, conference, and the laws of the state in which their school is located. Since the rule change in 2021, prominent collegiate athletes have generated millions of dollars from their brands, with the highest-paid student-athlete, former USC basketball player Bronny James, having an NIL valuation of $6.2 million. [12]

The mainstream emergence of artificial intelligence (AI) in recent years has also had a significant impact on the right of publicity. AI technologies, especially generative AI, have made it easier than ever to misappropriate someone’s likeness. [10] Generative AI can be used to create realistic images, videos, and audio that mimic real people, and there have been numerous recent instances of “deepfake” videos of celebrities and other high-profile individuals going viral. A deepfake is an AI-generated image, video, or audio that portrays something that does not exist in reality or events that never occurred. [13] Using AI, malicious actors can easily fabricate content that paints someone in a false or negative light, and viewers may be incapable of discerning that the content is AI-generated. [14] As AI technologies evolve and advance, policing and protecting one’s NIL rights will continue to become increasingly vital.

Protecting NIL Rights

For influencers, content creators, celebrities, collegiate and professional athletes, and other public figures, the MGA case serves as a powerful reminder of the value of safeguarding NIL rights. Here are some important steps you can take to protect your NIL:

Understand your rights: Familiarize yourself with the legal protections available for your name, image, and likeness. This may extend beyond rights of publicity. You should also have a thorough understanding of your copyrights and trademark rights.
Register your intellectual property: Ensure that your brand and brand elements are legally protected. This includes any logos, slogans, and creative content.
Monitor usage: Regularly monitor how your NIL is being used across various platforms. Unauthorized use can dilute your brand and result in significant financial losses.
Negotiate fair contracts: When entering into agreements, ensure that contracts explicitly outline the terms of use for your NIL and provide fair compensation.
Seek legal advice: Consult with a legal professional who specializes in intellectual property law to help navigate the complexities of NIL rights and to take action against misappropriations.

By taking these protective steps, public figures can protect their valuable NIL rights and ensure they are adequately compensated for their contributions. The GMA case is a testament to the value of these protections and the potential rewards of defending them vigorously.

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