One of the most addictive parts of sport is its ability to capture our imagination and create enduring memories. If we are lucky, we can capture visual depictions of those moments to relive the memories. Whether we are capturing the experience in person on our cameras or at home and watching the experience on our televisions or through social media, sports memories and video or photographic depictions of those memories go hand-in-hand. For me it was Kirk Gibson rounding the bases after his 1988 game winning homerun and Reggie Miller’s 8 points in 8.9 seconds (a/k/a the night he  directed a choke gesture to Spike Lee). For my son, by far the biggest sports fan I know, it is probably a tie between Omar Cooper’s toe-tap game-winning touchdown over Penn State or the Sports Illustrated cover-worthy diving touchdown by Indiana’s Heisman-winning quarterback that sealed Indiana’s improbable national championship. Many people reading this will know those images. But how? Not everyone watched those games. Those memories were captured and redisplayed. Many people claim rights in those redisplayed memories.  

Big business owners, small business owners, entrepreneurs, and influencers are all looking for boosts to their reputations that drive traffic and revenue their way. Using the parlance of the 2020s, they are looking to generate impressions and conversions through clever online marketing—usually leveraging the power and reach of social media platforms. Frequently this takes the form of sharing or reposting content already on social media, sometimes with a creative business-specific twist.

On March 9^th, Governor Beshear, surrounded by Kentucky college coaches, put his signature on a new law that will allow college athletes to profit from the use of their name, image, and likeness, an opportunity formerly blocked by the NCAA. This new law opens up many doors for college athletes to benefit from their most closely held intellectual property—themselves.

Believe it or not, there are no federal statutes or case laws protecting your exclusive right to the use of your name, image, and likeness (NIL) or any other defining factor of your identity, such as your voice or signature. Rights of publicity vary state by state, and as a result, these rights are complicated and little-understood. Recently, publicity rights (sometimes called “personality rights”) have been in the news—first for college athletes gaining the ability to profit from their NIL through a recent Supreme Court decision, then for the use of AI-generated clips of the voice of the late Anthony Bourdain in the documentary film Roadrunner. These two very different instances illustrate two sides of the multi-faceted issue of rights of publicity.