NIL rights and AND1 Mixtape

NIL Rights in Real Life

By Patrick Hanafin and Zane Johnson

The AND1 Ballers
Could Have Used a Good Lawyer

Debuting in 1998, The AND1 Mixtape was a cultural phenomenon. The concept was simple: take the highlights from various pickup basketball games and have a DJ slice up some hip-hop beats under the edited footage. Simple as it was, it was an idea that had never been seen before. And it wasn’t long before it took off.

For AND1, the first mixtape provided a huge return on investment because it costed next to nothing to make. The street ballers in the video had no idea they were being featured in AND1’s mixtape. But as the mixtape exploded in popularity, some of the players began to wonder… Could AND1 use their film footage without their permission? Were they entitled to some form of compensation?

The answer comes down to what is known as the right of publicity.


What is the right of publicity?

The right of publicity gives individuals the right to control the commercial use of their name, image, and persona (i.e., likeness). If you are a college sports fan, you’ve probably heard of this right referred to as NIL (name, image and likeness). Publicity rights protect voices, signatures, and all other personal identifying traits that are unique to an individual.

For the majority of us common folk, the right of publicity doesn’t play a role in our daily lives. But for celebrities and those who live life in the public eye, these rights are critical to protecting their personal brand. Because celebrities can prevent others from using aspects of their personal brand in advertising and merchandising, they have the ability to license their personal brand and collect passive income. (For a perfect example of the value of personal branding see “the Kardashians“.)

Like any right, publicity rights do have their limitations. Informational use of someone’s name, image or likeness is completely permissible. For example, a celebrity arrested for DUI can’t rely on the right of publicity to get their mugshot removed from a news website.


NIL rights vary

There are no nationwide NIL laws, which means publicity rights are effectively a matter of state law. The extent of your publicity rights varies depending on where you’re located. And some states provide stronger protections than others. For example, the right of publicity protects a person’s likeness after death in some states, but not in others.

To determine what your rights are, you’ll need to consult a professional or conduct some research. Some states have statutes in place that outline your publicity rights. However, even if your state doesn’t have a statute you may still have the common law right to control the use of your likeness. So if someone wants to use your name, image or likeness for a commercial purpose, don’t allow yourself to be exploited like the AND1 ballers.


NIL rights vs. the right of privacy

NIL rights are similar to and sometimes confused with the right of privacy. However, the right of privacy is a separate body of law. As mentioned above, the right of publicity primarily deals with the right to protect a person’s image from unauthorized commercial use. On the other hand, the right of privacy is designed to protect individuals against behavior that intrudes on their personal privacy. This includes the public disclosure of private facts and the publishing of information that places an individual in a false light. The “commercial” aspect of the right of publicity is not relevant when it comes to the right of privacy.


Right of publicity at play

So if you’re wondering how NIL rights play out in real life, here are a few examples.


On the court or in the court, MJ still wins…

A Chicago-area grocery store posted an ad in Sports Illustrated celebrating Michael Jordan’s induction into the Basketball Hall of Fame. The ad included Michael Jordan’s name and number. The grocery store had not asked for Jordan’s permission to use his name in connection with the ad, and Jordan sued.

The grocery store argued the ad was congratulatory, and that their use of Jordan’s name and number was protected by the First Amendment. However, this federal court saw things differently. Because Jordan’s name and number were used for an add with commercial intent, the grocery store violated MJ’s NIL rights.


Sounds like…

In one of the most famous NIL lawsuits, singer Bette Midler sued Ford Motor Co. after she refused to lend her voice to one of their commercials. Since Ford couldn’t get Midler, they hired someone who could sing just like her. The voice sounded so similar that many actually believed that it was Midler’s voice in the commercial.

Middler argued that Ford violated her publicity rights. The court agreed, concluding that a voice is as much a part of an individual’s identity as their face. Therefore Ford could not exploit the singer’s voice for commercial use without her permission. The fact that the voice used was actually an impersonator did not matter.


Robot look-a-likes

A bar in Chicago’s O’Hare Airport featured robots made in the images of two actors from the show “Cheers.” The restaurant had received a license from Paramount Pictures to create bars based on the show “Cheers”. The license also covered the right to use the copyrighted characters in the bar. However, the two actors who played the characters sued for the unauthorized use of their likenesses, and won.

The court in this case ruled that just because Paramount owned the copyright to the characters did not mean the actors who played them should lose out on the ability to control their likenesses. According to the court, Paramount’s copyright over the characters, and the actors’ rights to their likenesses could co-exist without conflict.


Ms. Rosa Park’s Legacy

Target sold books, a movie, and a plaque featuring the name and likeness of Rosa Parks. The Rosa Parks Institute, which owns the rights to Parks’ name and likeness, sued Target. In the end, the Institute lost the suit, mainly on free speech grounds. The court held that, given Parks’ significance to the civil rights movement, the use of her name and image was a matter of public interest. According to the court, the public interest in sharing Ms. Parks’ story outweighed the Institute’s interest in controlling her publicity rights.


NIL Rights: The bottom line

The right of publicity gives individuals the right to restrict commercial use of their name, image and likeness. Unfortunately, the AND1 ballers featured in the first mixtape weren’t aware of this. While they eventually got paid, it was peanuts compared to what the company made off of their talents. With the leverage they possessed, a professional undoubtedly would have helped them get what they were worth and then some.

NIL rights sit in a gray area in intellectual property law between trademark and copyright. Therefore, it can be difficult to determine when use of a person’s persona is a violation of their publicity rights.

If your likeness has been used without your permission and you’re not sure what to do next, MZA Legal is here to help. We’ve helped hundreds of new entrepreneurs protect their rights and set a solid foundation for their business. Schedule a consultation today, and let us help you own your future.