NIL Rundown: Name Image & Likeness and the Right of Publicity

What is NIL?

If you’re an athlete or the parent of an athlete, you’ve probably heard about NIL. But if your knowledge stops there, here’s a brief rundown of what it is and how it fits into the landscape of college athletics.

The Law of NIL

NIL is nothing new. States have long recognized the right of publicity, which protects your right to control the recognizable aspects of your identity from being used improperly by others. Essentially, we all have the ability to prevent businesses from using our name, image, and likeness (NIL) for commercial purposes without permission.

The key word here is commercial. For example, while you typically can’t prevent a news outlet from filming you in a public place, you usually can stop a car dealership from using your smiling face on a billboard without your consent.

As you probably know, the value of this right of publicity comes from celebrity endorsements. Brands are willing to pay well-known athletes large sums of money to license their NIL for promotional purposes. While anyone can license their NIL, the price depends on demand—meaning a national sports star’s NIL is worth significantly more than that of a local or regional athlete. Each NIL deal is unique, not because the law itself has changed, but because the value of an endorsement depends on the athlete and the brand involved.

NIL for Student-Athletes

While the right of publicity has remained the same, the rules for student-athletes have changed. Today, “NIL” has become shorthand for the ability of college athletes to profit from their name, image, and likeness.

Until recently, NCAA rules prohibited student-athletes from making money through NIL deals. That all changed after NCAA v. Alston, 141 S. Ct. 2141 (2021), which led to a shift in NCAA policy, allowing athletes to enter into brand partnerships. Now, student-athletes can monetize their NIL, but the regulations governing these deals vary by state, school, and even individual conference—and they may continue to evolve.

To stay compliant, college athletes need to stay up to date on NCAA rules and state laws before entering into any NIL agreements. Some key requirements include:

    •    NCAA regulations, such as reporting certain NIL contracts to the organization.

    •    University-specific policies, which may include reporting obligations or mandatory educational courses on NIL.

    •    State legislation, which continues to change as lawmakers refine NIL guidelines.

Because of these complexities, student-athletes should consult an attorney knowledgeable in NIL laws in their school’s state before signing any agreements.

NIL as a Recruitment Tool

One of the unintended (though predictable) consequences of changing NIL rules is their use in college recruitment. Universities have long relied on booster clubs—groups of wealthy alumni and supporters who financially back athletic programs—to support their teams. Now, these boosters can play a direct role in NIL deals, helping attract top recruits with lucrative endorsement opportunities. This comes with its own issues, as high profile recruits have had their university commitments flipped with promises of NIL earnings that may or may not have been honored.

A cynical view of NIL would argue that some colleges use sham NIL deals as a way to compensate athletes without violating other NCAA rules. While NIL was originally intended to allow student-athletes to benefit from their publicity rights, it has also become a powerful tool in the competitive world of college recruiting.

The Big Takeaway

At its core, NIL is simply the same right of publicity that has allowed athletes and public figures to profit from endorsements for decades. The only real change is that NCAA athletes can now participate in these deals, whereas before, they could not.

For student-athletes, the most important thing is staying informed. NCAA policies, state laws, and university rules are constantly evolving, and failing to comply could put an athlete’s eligibility at risk. As with any contract, consulting a knowledgeable attorney before signing an NIL deal is essential.

Understanding Fair Use in Copyright Law

If you’re a musician or a content creator, you’ve heard about fair use. And, chances are, you’ve heard a lot of misinformation. Let’s fix that. I’m an entertainment attorney, and I went to law school so you don’t have to. Here’s a brief rundown on what fair use is, and, just as importantly, what it isn’t.

What is Fair Use?

Copyright owners have certain exclusive rights to use their works in the way that they want and, importantly, to prevent others from doing so. See 17 U.S.C. Section 106. If someone violates those exclusive rights, it’s an infringement.

Fair use, when it applies, allows someone to use copyrighted works without permission from the copyright holder. That’s a pretty big deal! So let’s make sure we understand what we’re talking about. Examples of presumptive fair use categories include criticism or commentary on the work itself, news reporting, teaching, scholarship, or research. But who actually decides if something fits into those categories? Who decides what is or isn’t fair use? Courts.

In practice, fair use shows up as an affirmative defense to a lawsuit for copyright infringement. E.g., Golan v. Holder, 565 U.S. 302, 328 (2012). An affirmative defense bars a claim—but it does not stop the lawsuit from happening. The person claiming a defense has the burden to prove that defense. A defense is not automatic just because you claim it. A defendant in a lawsuit actually has to present their defense in court. And until a court rules on it, a defense is just a defense—nothing more. Courts are required to assess every fair use defense individually and analyze them one by one under the same test.

(Note that if a court rules something to be fair use, it is, by definition, not an infringement. As such, some lawyers argue over whether it should be categorized as a defense or not. Whether it is or isn’t technically a “defense,” it almost always shows up in court as a defense. So we will talk about it that way.)

The test for fair use looks at different factors and analyzes the specific use of a copyrighted work in question piece by piece. Some claims of fair use are really strong, others are weak, but none are a 100% certainty. Some To understand why, let’s look at the law of fair use.

Courts decide questions of fair use on a case-by-case basis—not in the abstract. The law gives courts four non-exclusive factors to consider:

    (1)    The purpose and character of the use;

    (2)    The nature of the copyrighted work;

    (3)    The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

    (4)    The effect of the use upon the potential market for the copyrighted work.

I could recite these to you all day long, but that doesn’t help you understand them any better. So let’s look at an example to see how these work.

Example: John’s Music Review Podcast

John is a podcaster who reviews new music. John has a background as a classical vocalist, and his followers love listening to his opinions on the voices of new artists. Saylor Twift releases a new song, and John reviews it on his podcast. The podcast is fifteen minutes long, and John uses about five seconds of audio from the bridge of Saylor’s new song. He specifically uses the five seconds of audio to explain how he loves the way she belted a certain note. Fair use?

Your gut probably tells you this is fair use, but let’s understand why:

Factor (1) The Purpose and Character of the Use.

Here, John is using the work to discuss Saylor’s singing technique and for the purposes of commentary or critique. Remember, this is a type of use that the fair use statute considers presumptively fair use. As such, Factor (1) probably points toward fair use.

Factor (2): The Nature of the Copyrighted Work.

This factor looks at whether the work is more factual or creative. Uses of factual works are more likely to be considered fair use than uses of highly creative works. Here, John’s use is of a piece of a song—something highly creative. As such, Factor (2) likely points against fair use.

Factor (3): The Amount and Substantiality of the Portion Used.

John uses around five seconds of audio to discuss a particular note. The podcast is fifteen minutes long. The smaller the portion of the work used, the more it looks like fair use. Now, it’s possible that five seconds could be such a vital piece of the song that it is a “substantial” use. But to keep it simple, let’s assume that five seconds of this song is not a substantial use. As such, Factor (3) probably points toward fair use.

Factor (4): The Effect on the Market.

This factor looks at whether John’s use would affect the market for Saylor’s song. The market for songs is usually connected to the song as a whole. There can be exceptions, however, but in this instance, the listeners of John’s podcast are there to hear his thoughts and commentary. They’re most likely not listening to the podcast to hear John’s thoughts, not Saylor’s song. And the use is primarily for critique of the song itself. As such, Factor (4) likely points toward fair use.

Taken together, we have three factors that point toward fair use and one that points against it. It is likely that, in this situation, John’s claim of fair use would be successful.

How Context Changes Fair Use

Think about just how quickly this analysis could shift against fair use if we change a few things. Imagine if John was using the same five-second clip as a theme song for his podcast. That kind of use suddenly points against fair use in both Factor (1) and Factor (4), shifting the ultimate result.

How?

    •    Factor (1): The character of the use becomes commercial. Even if John comments on the song, a theme for a podcast is most likely a commercial use.

    •    Factor (4): The market for the song is directly harmed because theme songs are a major source of revenue for music.

By changing the context of the use, the same clip of the same song in the same podcast looks far less like fair use. The question of fair use always hinges on the specific facts of the case.

The Bottom Line

When people speak in absolutes about fair use, they are missing the point. No one knows for sure if something is or isn’t fair use until a court rules on it. While there certainly are examples where something is most likely fair use, it is incorrect to say something is definitely fair use. Arguments can always be made one way or another, and some are better than others. But, ultimately, a lawsuit has to be brought to determine if the fair use claim is successful.

To analyze a case, you have to go through the factors and reach a likely conclusion. The conclusion can be a “most likely” conclusion, but, unless you’re a sitting judge or jury, it should never be an absolute yes or no.

As an attorney representing creators, I come across fair use issues all the time. I love helping my clients understand the legal framework behind their issue so they can make the best decisions for their careers. One thing I always reiterate to my clients is that you do not need to become an expert on legal issues like fair use. Rather, you just need to know when something could be an issue.

As a creator, you should be creating—not spending your time analyzing legal claims. The takeaway here is not knowing exactly what is or isn’t fair use. The most important thing to understand is that fair use is complicated and always hinges on the specific facts of each case.