Jay (John) Fort

Associate Editor 

Loyola University Chicago School of Law, JD 2026

Name. Image. Likeness. Three words which, when taken together, evoke increasingly complex meanings. Recently, a number of high profile cases have spotlighted the growing concerns over the meaning and implications of “self” ownership, a concept traditionally lying at the intersection of intellectual property and tort law, connections to privacy law, as well recently implicated issues of antitrust-competition and emerging technology (i.e. AI) regulation.

In an ever evolving and interconnected technological landscape, issues of Name Image and Likeness (NIL) reveal broad and far reaching implications for today’s courts and regulators. From the scope of traditionally limited contracts to licensing to perpetual ownership and indefinite use, state regulation and limited judicial decisions may finally prove insufficient for the task at hand. However, new applications combined with time-tested legal tools may help even the playing field, both by protecting competition and preventing exploitation.

Recent cases in the sports and entertainment industries (NCAA and SAAG-AFTRA) validate the importance of modern-regulation as a supplement to less-than-binding jurisprudence. While U.S. federal agencies have expressed interest and states have individually taken important steps toward governing NIL controversies, countries like England, France, Spain, Italy and Germany offer clear, robust protections, benefits which U.S. lawmakers and regulators should carefully consider.

Rights of publicity and privacy

In Thomas McCarthy’s The Rights of Publicity and Privacy § 1:3 (2d ed.), publicity rights were traditionally defined as state-law intellectual property rights permitting individuals to control the commercial use of their identity. Right of Privacy actions follow a more modern philosophy than traditional privacy rights, protecting against unauthorized use of a person’s name, likeness, or persona [image] for commercial gain. Over time, the right of publicity became generally considered as the distinct right of each person to control the commercial use of his or her identity.

First recognized in 1953, the term “right of publicity” was coined by Second Circuit Judge Jerome Frank in a case concerning whether a corporation could gain exclusive contractual right to use (license) a professional athlete’s picture in connection with marketing a corporate product.  Since then, NIL claims and cases have continued.

The National College Athletic Association (NCAA)

In NCAA v. Board of Regents, plaintiffs, Board of Regents of the University of Oklahoma and the University of Georgia Athletic Association, brought suit against defendant NCAA over exclusive broadcasting rights, namely to ban its exclusive control over television rights to college football games under Section 1 of the Sherman Act. The court reasoned that the exclusive nature of the deal unreasonably restrained trade in its relevant market.

However, despite a narrowly scoped victory in favor of plaintiffs, future court decisions would lean heavily in favor of the NCAA’s unique status, an “amateur” exemption, essentially a carve out allowing massive universities to gain and exercise full power and control over the NIL of its athletes. These decisions would continue to be hotly debated for decades. Still, modern cases have emerged to challenge and erode the status quo.

In the 2015 case of O’Bannon v. NCAA, the court held that NCAA’s rules were unreasonably restrictive, concluding that the Rule of Reason (Sherman Act) analysis required that the NCAA permit its member schools to provide up to the cost of attendance to their student athletes.

In 2021, current and former student-athletes brought a class action suit under Section 1 of the Sherman Act. The Ninth Circuit enjoined certain NCAA rules limiting the education-related benefits, such as scholarships for graduate or vocational school, payments for academic tutoring, or paid post-eligibility internships. On appeal, the Supreme Court upheld the injunction prohibiting enforcement of said NCAA rule limiting education-related benefits for student-athletes, such as scholarships for graduate or vocational school and payments for academic tutoring.

Even more recently, in the 2025 case of House v. NCAA, the NCAA reached a settlement, by which the organization agreed to pay $2.8 billion in damages to Division 1 athletes. Approved on June 6, 2025, it permits schools to directly share revenue with athletes and ends the longstanding prohibition on NIL payments, fundamentally transitioning college athletics toward a professionalized model.

SAG-AFTRA actors strike opposing AI replicas

Another industry heavily impacted by NIL issues was the Screen Actors Guild-American Federation of Television and Radio (SAG-AFTRA) union’s battle over the use of digital AI replicas (including an actor’s voice and image). These included “Employment-Based Digital Replica” and “Independently Created Digital Replicas.” Following successive strikes and negotiations between 2023-2025, the union secured historic AI protections, including requiring video game companies and studios to obtain informed consent, provide transparency, and pay fair compensation for the use of digital replicas and AI-generated performance. Further, the deal included substantial (twenty-four percent) pay increase and strict AI rules, preventing the unauthorized replacement of human actors with AI.

Benefits of a coherent federal framework

Ultimately, beyond material compensation, SAG-AFTRA gained several major AI and NIL related concessions. First, Consent & Control, requiring employers to gain explicit consent before creating a digital replica of a performer’s voice or likeness. Another is Compensation, meaning actors must be paid for use of their digital replicas in new media. Next, Transparency, meaning companies must disclose how they intend to use AI tools for performances. Finally, Right to Refuse, such that performers can refuse to have their digital replica used in certain situations, such as during future strike.

Both the NCAA and SAAG-AFTRA cases demonstrate the need for definitive, standardized NIL protections, especially in high-profile arenas like sports and entertainment. Today, while there remains no federal U.S. statute governing the right of publicity, at least 31 states, including New York and California, currently recognize NIL rights by either common law or statute. Noting the lack of a federal framework commonly leads to jurisdictional issues between states (including choice of law disputes and disparate results for all parties), a federal baseline of NIL protections would prove invaluable, providing essential stability-and reliability- across the technologically dynamic commercial transactional relationships of the modern era.