Ropes & Gray Right of Publicity Roundtable Examines Key Industry Issues

Ropes & Gray hosted its annual Right of Publicity Roundtable dinner for in-house counsel and corporate executives in Boston on October 14. Ropes & Gray partners included Chris Conniff, Dan Freshman, Erica Han, and Stephanie Lapidus. The conversation covered right-of-publicity challenges, including AI, influencer trends, and the evolving legal landscape for name, image, and likeness rights.

Key Messages for In-House Counsel:

• Secure company ownership of trademarks (with irrevocable consents for marks identifying living individuals) and licenses to publicity rights for founder-led brands.
• Ensure influencer and ambassador contracts address morals / reputation, risk allocation (including for use of music and other third-party IP and Federal Trade Commission disclosure requirements), exclusivity, and use of AI.
• Prioritize compliance with FTC guidelines, NCAA NIL rules (if applicable), and state laws (including new AI disclosure laws) in agreements and marketing practices.
• Monitor expanding trademark and publicity rights to protect brand value and minimize legal exposure.

Coupling and decoupling brands from their founders

Many consumer brands are built on a founder's name and/or story. When that founder becomes the center of a public controversy, the brand's most recognizable asset can quickly become a liability. Accordingly, brands seek clear IP ownership provisions, assignment of trademarks and goodwill, and well-drafted morals clauses and limits on the founder's use of their own name after leaving. Without those terms, a brand may have limited ability to separate itself from its founder. Even with them, the choice to rebrand, decouple the brand from the founder, or stay with the founder is as much a business decision as a legal one, driven by brand equity and how consumers see the brand (and the ability of the founder to recover their reputation).

The evolving business of influencer marketing

Influencer marketing has grown from one-off sponsored posts into large affiliate and ambassador programs, often blending traditional influencer and affiliate-based compensation models. Brands increasingly answer for how their creators comply with laws and regulations. College-student influencers add further layers, because deals must account for school policies and (if applicable) state NIL laws. AI-generated “virtual” influencers raise newer questions about disclosure, consumer trust, ownership of synthetic personas, and liability when a digital persona closely resembles a real person.

The intersection of trademark and publicity rights

Celebrities and athletes are turning to federal trademark registration to protect parts of their identity that state right-of-publicity law has traditionally covered. These include signature celebrations and poses, catchphrases, distinctive vocal sounds, and autographs. These filings, though, face real hurdles as applicants must show the feature works as a source identifier, and motion and sound marks bring their own examination challenges. Even if registration succeeds, it remains to be seen whether they will provide any meaningful enforcement value against unauthorized use of the celebrity’s identifying features.

Trends in endorsement agreements

Generative AI is changing how endorsement agreements are negotiated. Talent and their representatives now routinely seek express limits on digital replicas, voice cloning, and use of their likeness to train AI models, influenced by laws such as Tennessee's ELVIS Act and California's digital replica statutes. Morals clauses are also changing as they are increasingly mutual, giving talent rights if the brand itself is involved in misconduct. Indemnification provisions are heavily negotiated in light of increasing risks including music infringement litigation and claims alleging improper disclosure requirements. Endorsers typically try to narrow exclusivity to allow them to work with multiple brands.

The evolving sports NIL landscape

College athlete NIL regulation continues to change quickly. The House v. NCAA settlement, new revenue-sharing models, and differing state laws are creating significant compliance and contracting risk for brands, collectives, and schools. The Protect College Sports Act (recently passed in the Senate), will continue to evolve these requirements if passed by the House. Disputes over ownership are also moving beyond name, image, and likeness (NIL) to jersey numbers, awards, game statistics, and biometric data collected by wearables and tracking technology.