Practical Explainer | September 12, 2026

A celebrity can control the commercial value of their face without owning the photograph of their own face.

That sounds contradictory. It is not.

When an athlete appears in a photograph, for example, at least two different rights may exist at the same time. The athlete may have a right of publicity in the commercial use of their identity. The photographer may own the copyright in the photograph itself.

A sponsor wanting to put that photograph on a billboard may therefore need permission from both.

And that is only the beginning.

Names can function as trademarks. Teams and leagues may have contractual licensing rights. Media companies may own footage. Endorsement agreements may grant exclusivity. State law may protect a voice, nickname, signature or other identifying characteristic. And increasingly, artificial intelligence can create a realistic “likeness” without using any existing photograph at all.

The easiest way to understand the system is to stop asking, “Who owns the NIL?”

Ask instead:

What exactly is being used—and what legal right controls that particular use?

In the United States, there generally is no single piece of property called a person's “NIL.”

Instead, several overlapping bodies of law may apply:

Those rights can overlap.

That means obtaining one permission does not necessarily obtain the others.

The right of publicity generally protects a person's ability to control certain commercial uses of their identity.

The details vary significantly by state.

Ohio, for example, defines a protected “persona” to include an individual's name, voice, signature, photograph, image, likeness or distinctive appearance when it has commercial value. Its statute describes the right of publicity as the property right to use that persona for a commercial purpose.

New York prohibits using a living person's name, portrait, picture, likeness or voice for advertising or trade purposes without written consent.

The important point is that publicity rights concern identity, not necessarily a particular photograph.

That distinction can make the right broader than people expect.

In the famous Carson v. Here's Johnny Portable Toilets case, the defendant did not use Johnny Carson's photograph or legal name. It used “Here's Johnny,” the phrase strongly associated with Carson. The Sixth Circuit concluded that commercial exploitation of a person's identity could occur even without literally using the person's name or picture.

So imagine a company sells a basketball shoe marketed with: “The King of Akron's Signature Model”

No photograph appears. No legal name appears.

That does not necessarily end the analysis. If consumers unmistakably understand the reference as identifying a particular athlete, publicity-right issues may still arise depending on the jurisdiction and facts.

States commonly recognize protection for some uses involving news, public affairs, sports reporting, commentary, artistic expression and other First Amendment interests.

Ohio, for example, expressly excludes uses connected with news, public affairs and sports broadcasts or accounts from its statutory consent requirement.

That does not mean “the First Amendment” automatically defeats every publicity claim.

The Supreme Court's Zacchini v. Scripps-Howard Broadcasting Co. decision remains the classic illustration. A television station filmed and broadcast Hugo Zacchini's entire 15-second human-cannonball performance despite his objection. The Supreme Court held that the First Amendment did not automatically immunize the broadcaster from his state-law publicity claim merely because the footage appeared in a news program.

Reporting about the performance was one thing.

Giving viewers the entire product Zacchini ordinarily sold was another.

That distinction still captures the basic tension: publicity law protects commercial identity, while the First Amendment protects the ability to discuss, report on and portray real people.

Where the line falls often depends on the particular state's law and the nature of the use.

This is probably the most important practical misconception.

Suppose a photographer takes a spectacular photograph of a quarterback celebrating a championship.

The quarterback is the subject.

The photographer will ordinarily own the copyright.

Copyright initially belongs to the author of the work, subject to rules such as work-made-for-hire and later assignments. For photographs, the photographer is generally the author unless some exception applies.

So the athlete generally cannot say:

“That is a picture of me, therefore I own it.”

They do not.

But the reverse is equally important.

The photographer generally cannot say:

“I own the photograph, therefore I can use your face however I want.”

Owning copyright in the image and having permission to commercially exploit the subject's identity are different questions.

Consider three uses of the same photograph:

Sports Illustrated publishes it with a story about the championship.
That is principally an editorial use.

The photographer sells prints of the photograph.
That raises a different mix of copyright, publicity and First Amendment questions depending on jurisdiction and context.

A sneaker company puts the photograph in an advertisement saying “Champions Wear Our Shoes.”
Now the commercial endorsement implications are much stronger.

Copyright ownership did not change.

The use did.

That is why commercial licensing often requires both:

Copyright law itself expressly separates ownership of a copyright from ownership of the physical thing embodying the work. Buying a photograph, painting, manuscript or recording does not automatically transfer the copyright in it.

The same principle applies in reverse: owning rights in your identity does not automatically give you copyright in someone else's creative work depicting you.

Trademark law asks a different question:

Is the name, phrase, logo or other identifier functioning as a brand?

A celebrity's name can become a trademark when consumers understand it as identifying the source of particular goods or services.

But trademark law does not give someone absolute ownership of their name in every context.

The core concern is consumer confusion about source, sponsorship, affiliation or approval.

Section 43(a) of the Lanham Act, for example, prohibits uses likely to deceive consumers about affiliation, connection, sponsorship or approval. That can support what is commonly called a false endorsement theory.

Imagine a supplement company runs:

“TRAIN LIKE [FAMOUS ATHLETE]”

beside a photograph of the athlete.

Even apart from state publicity law, the presentation might create the misleading impression that the athlete endorses or is affiliated with the product.

Trademark law may therefore overlap with publicity rights.

There is another important wrinkle: federal trademark law generally requires the written consent of a particular living individual before someone else can register a trademark consisting of that person's name, portrait or signature. The USPTO applies that principle to pseudonyms, stage names and nicknames in appropriate circumstances as well.

Still, registering STEPHEN SMITH as a trademark for shoes would not mean Stephen Smith suddenly owns the words “Stephen Smith” everywhere.

Trademark protection is tied to branding, goods and services, and consumer perception.

The Supreme Court reinforced the importance of source identification in Jack Daniel's Properties v. VIP Products: when someone uses a designation as a trademark—as a source identifier—ordinary trademark scrutiny generally applies even if the product also contains expressive or humorous elements.

Once sponsorships, teams, leagues, studios, labels, agents and licensing companies enter the picture, contracts often become the practical center of the analysis.

A person may own a legal right but license someone else to use it.

That is very different from selling the right entirely.

A typical license might specify:

Suppose an athlete signs an apparel endorsement granting Company A the exclusive right to use the athlete's likeness in connection with athletic footwear.

The athlete still possesses their identity.

But they may have contractually surrendered the ability to license competing footwear companies during the agreement.

That is why ownership and licensing are not the same thing.

A person can own a right while temporarily giving someone else exclusive control over a defined slice of it.

Some state statutes expressly contemplate transfers and licenses. Ohio, for example, makes publicity rights transferable and descendible and permits owners to place conditions on authorized commercial uses.

Contracts can also create rights that the underlying statute would never have created by itself.

The brand may need:

Publicity permission from the athlete.

Copyright permission from whoever owns the photograph.

And potentially compliance with existing endorsement or exclusivity agreements.

One photograph can therefore require several separate clearances.

Ordinary news reporting is generally treated far differently from advertising.

The outlet may still need the right to use the photograph itself under copyright law, but the subject's publicity rights ordinarily do not amount to a veto over legitimate reporting merely because the article or publication is commercial.

As Zacchini demonstrates, however, “news” is not an unlimited magic word. Appropriating the economic value of an entire performance can present a different question.

Now the risk rises sharply.

A T-shirt displaying someone's face or identity may implicate publicity rights, trademark or false-endorsement law, and copyright if the design incorporates someone else's photograph or artwork.

Calling the shirt “fan art” does not automatically resolve any of those questions.

This is the fastest-moving category.

A synthetic Drake-like voice or digitally generated actor does not necessarily copy a particular copyrighted photograph or sound recording.

That makes publicity and digital-replica rights increasingly important.

Tennessee's ELVIS Act, effective in 2024, expanded its personal-rights law to protect voice and likeness and addresses certain unauthorized synthetic uses.

The U.S. Copyright Office has concluded that existing state laws are inconsistent and sometimes inadequate for digital replicas and recommended federal legislation.

Congress has been considering the NO FAKES Act, which would create federal rights involving unauthorized digital replicas. As of September 2026, the current 2026 proposal, S.4591, has been reported from the Senate Judiciary Committee and placed on the Senate calendar, but it has not become federal law.

That distinction matters.

A proposed federal right is not yet an existing federal right.

No. Publicity rights do not ordinarily give someone complete control over every depiction of them.

News reporting, commentary, expressive works and other protected uses may be permissible.

And someone else may own the copyright in the photograph.

Also no.

Copyright ownership does not automatically eliminate another person's publicity, endorsement or contractual rights.

No.

Trademark protects source-identifying uses and guards against consumer confusion. It is not a general prohibition against mentioning another human being.

No.

“NIL” is convenient shorthand, especially in college sports. It should not be mistaken for a single federal property right governing every possible use of identity.

Frequently it does not.

A synthetic likeness may raise publicity, trademark, contract, fraud, privacy and digital-replica issues even if no traditional copyrighted photograph or recording was copied.

When a name, image, voice or likeness is being used commercially, ask four questions:

1. Whose identity is being used?
That raises publicity-right and possible endorsement issues.

2. Is someone else's creative work being used?
A photograph, clip, recording, graphic or illustration may require copyright clearance.

3. Is the person's identity being used as a brand or in a way that suggests sponsorship?
That raises trademark and false-endorsement questions.

4. What do the contracts say?
An endorsement agreement, talent agreement, collective license, team contract or release may expand, restrict or allocate the rights involved.

That four-question framework resolves much of the confusion.

Sometimes rights can be transferred; sometimes a transaction is better characterized as a license; and state law varies. The agreement and governing jurisdiction matter.

Posting the photograph does not itself establish copyright ownership. Ordinarily, the photographer or other copyright owner retains the copyright unless ownership was validly transferred or the work was made for hire. Copyright transfers generally must be in a signed writing.

Generally, legitimate editorial reference to a person is very different from using that person's identity to suggest a commercial endorsement.

Context matters.

Sometimes.

State laws differ dramatically. Ohio, for example, generally provides statutory protection for 60 years after death for covered individuals, while other states have different durations and requirements.

Generally no. Traditional right-of-publicity law remains predominantly state law, which is one reason outcomes can vary significantly by jurisdiction. Federal trademark and copyright law may overlap with those rights, however.

An athlete or celebrity does not simply “own their NIL” in the way someone owns a car.

They may control the commercial exploitation of their identity under publicity law.

They may own trademarks associated with their brand.

Someone else may own the copyright in photographs, videos or recordings featuring them.

And contracts may give sponsors, teams, studios, leagues, labels or other businesses substantial rights to use that identity.

So when a person's name, face or voice appears somewhere, the real question is not:

Who owns the likeness?

It is:

Who controls the particular right needed for this particular use?

That is where the law—and usually the deal—actually lives.