Articles Posted in Right of Publicity

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As 2024 comes to a close, permutations in the arena of name, image and likeness (NIL) impacting collegiate athletics continue unabated.

Most prominently, Northern District of California District Judge Claudia Wilken preliminarily approved the proposed settlement agreement to resolve the trio of pending antitrust cases known colloquially as Carter, House, and Hubbard. While a number of judicial hurdles must be cleared before the settlement is finalized and implemented, Judge Wilken’s ruling is a significant step toward a new system of rules and athlete compensation for collegiate athletics.

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American flag with electric guitar in front of right side of itMoments before former President Donald Trump took to the stage at a Montana rally this August, Celine Dion’s 1997 hit, “My Heart Will Go On,” blasted over the speakers while a clip appeared onscreen. It took less than 24 hours for the five-time Grammy winner’s team and Sony Music Entertainment Canada to issue a statement on social media saying that “in no way is this use authorized, and Celine Dion does not endorse this or any similar use.” Amid a heated political season, it’s not unusual for candidates to clash with the artists whose music they promulgate on the campaign trail. In Trump’s case, though, using a video compounded the legal complications. While political licensing for music typically needs approval from the recording artist, video playback requires approval from both the artist and composer. In theory, this fact would make it less risky for campaigners to stick with audio-only soundbites of their favorite crowd-pumping tunes. However, there are still questions around general music licensing dos and don’ts when it comes to politics, even as performing rights groups work to clarify things. For now, the intersection of artists’ rights and political campaigns remains a murky legal crossroads, at best.

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voice-cloning-1742823752-300x178Global music superstar Taylor Swift began her music career in Nashville, so we thought it fitting that on July 1, with the end of the Eras Tour in sight, the Ensuring Likeness Voice and Image Security (ELVIS) Act went into effect in Tennessee. This marks the latest front in the effort to navigate the interplay between the capability of generative AI and the Right of Publicity for music and voice artists alike.

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sports-NIL-1188462138-300x200Developments in the world of name, image and likeness (NIL) rights continue to occur at an extremely swift pace.

Within the last two weeks, Virginia amended its existing NIL laws to significantly strengthen student-athlete NIL rights, and the NCAA adopted new NIL rules designed to allow schools to support student-athlete NIL endeavors. The NCAA also relaxed the NIL disclosure requirement adopted in January and announced it had selected Teamworks Innovations to build and maintain its NIL database.

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Friends drinking rooftop partyYour company wants to use a picture taken outside of your office at an event you are hosting or sponsoring. Perhaps the image shows someone wearing your clothing or other product or using something showing your brand. Possibly you participated in a parade and want some images showing your company’s float or views from the float along the parade route. Maybe the image shows the outside of your building or the immediately surrounding area. You may have hired a photographer to take the pictures, they may have been taken by an employee, or someone may have found them on a third-party website or social media posts. The pictures may depict people who were on the street or present at the event, and they may include images of one or more buildings or local landmarks.

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Tattoos-copyright-1184219605-300x200You’re in the midst of doomscrolling, when you decide to take a mental health break and post a photo to your socials from a happier (pre-pandemic) time. As you search through your photos, you find a great one of yourself that a friend-of-a-friend took. You’re about to post the photo when you remember a post that you read on this very blog about the potential copyright consequences of using a photo taken by someone else. You aren’t a celebrity—yet—but you decide that it’s best to use a photo that you took yourself. A couple of minutes later you post a throwback selfie in which you are smiling as you proudly show off your very first tattoo. It took you days to decide on the design and hours for the tattoo artist to bring to life. Even today you still get compliments on it, and some people have even recognized you solely based on the fact that you have a very big and very prominent tattoo of Pegasus riding a dragon while eating rainbow sherbet and shooting lasers from a cat. Your post starts racking up likes from your friends (and followers)—when all of the sudden you get a DM from the tattoo artist informing you that she never authorized you to display her copyrighted work on social media and demanding that you take the photo down. Unfortunately, now you’ll be spending the rest of your evening trying to figure out how any rights your tattoo artist has in works permanently inked upon your body may impact your own rights to use (and license) your own likeness.

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GettyImages-1127138955-photo-copyright-300x264In a recent social gathering, your friends took a number of photos and circulated it to the group. You see that one shot by a friend is a particularly great photo of you. You repost to your social media account to share with the world. It would generally be safe to assume that nothing will come of this, much less a copyright infringement lawsuit against you by your friend who took the shot. For celebrities, this is not always the case. In the past few years, there have been many lawsuits filed for copyright infringement by photographers and paparazzi against celebrities that reposted photos of themselves that they took off the internet.

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facial recognitionNo one knows your face as well as your iPhone does. All the unique variances of your face that make it yours and yours alone, these are all data points that your iPhone uses to unlock your phone using a face in place of a thumbprint. This same data that the iPhone collects can be used by the underlying tech—facial recognition technology—in a vast array of applications, from border control to photo tagging to law enforcement. But is this data (the measurement of the space between the eyes, the texture of the skin, etc.) open data? Or do individuals have a right to protection of an image of their face?

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Recent developments in deep learning artificial intelligence have enabled almost anyone to superimpose facial features—including an entirely different face—into a preexisting video with relatively minimal effort. Until very recently, editing facial features in a video has been incredibly difficult. Even movie studios with access to professional video editing tools have struggled with the task as recently as in 2017, when actor Henry Cavill—portraying everyone’s favorite son of Krypton—sported a mustache he was contractually unable to remove during reshoots, leading to a widely criticized post-production digital shave. Because of the inherent difficulty in convincingly manipulating video to appear realistic, the public has widely been trusting of video’s authenticity while viewing still photos more skeptically. With recent developments in artificial intelligence, this thinking must now change.

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Framed-tweet-300x250When it comes to finding ways of making money, no corner of a capitalistic society shall go unmined. This applies to obvious goods and services but also comes into play with our very thoughts and how we express them. In the age of social media, not even the framed needlepoint proverb is safe from “disruption”: behold, the framed tweet.

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