October 23, 2021

Volume XI, Number 296

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October 22, 2021

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October 21, 2021

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The Intersection of Retail and NIL Statutes

In the US, NIL rights (name, image, and likeness) are grouped under the right of publicity, which generally “prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion.” NIL rules allow athletes to profit off their personal brands with promotions for various services and products through social media posts, appearances, sponsorships, autograph sales, endorsement deals and private training classes or camps.  Prior to the introduction of these laws, college athletes could not endorse products or services, under any circumstances.

While there is no federal law recognizing the right of publicity, or NIL rights, a majority of states recognize a right of publicity by statute, case law, or both. Twenty-five states have already approved some type of NIL statute that will go into effect by 2023. Seventeen states are in the midst of considering NIL statutes, but have not yet enacted them. Additionally, Senate is considering six NIL statutes introduced by various senators from around the country.

ESPN gathered data and statistics from experts and found that star athletes could earn up to $1 million through social media posts. Likewise, Olympic athletes could earn hundreds of thousands of dollars through advertisements and clothing promotions. In general, athletes’ promotional value will depend their popularity and the size of the market in which they reside. See the Washington Post’s article for more.

For most athletes, endorsement deals can come from local businesses. For example, Onward Reserve, a men’s apparel brand, will sponsor a number of University of Georgia athletes to endorse its products. Similarly, University of Miami quarterback D’Eriq King announced on Twitter that he was signing an endorsement deal with College Hunks Hauling Junk, along with teammate Bubba Bolden. King also paired with Florida State quarterback McKenzie Milton as co-founders on NIL platform Dreamfield, which focuses on booking live events for student athletes. And, University of Iowa basketball player Jordan Bohannon paired with Boomin Iowa Fireworks for a meet-and-greet session at the fireworks business in Windsor Heights, Iowa.

Without question, the future of advertising will be greatly affected by the introduction of these laws, and only time will tell how it will impact the retail industry.

Copyright © 2021, Hunton Andrews Kurth LLP. All Rights Reserved.National Law Review, Volume XI, Number 230
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About this Author

Jonathan Reichman, Andrews Kurth Law Firm, Intellectual Property Attorney
Partner

Jonathan has over 30 years’ experience in litigation, licensing and counseling matters in copyright, trademark, unfair competition and right of publicity law, particularly for clients in the entertainment industry. World Trademark Review 1000 recognizes him as a leader in trademark matters and notes that he has “specific expertise in protecting rights related to fictional characters” (2016). He is ranked in New York by Chambers & Partners USA in the area of “Intellectual Property: Trademark & Copyright” (2014). In addition, Jonathan has been...

212.908.6256
Sherli M. Furst Attorney Intellectual Property Hunton Law Firm New York
Associate

Sherli handles a broad range of intellectual property matters in the fashion and entertainment industries.

Sherli’s practice focuses on complex intellectual property disputes such as trademark and copyright infringement, internet rights and the DMCA, contract and commercial disputes, rights of publicity and unfair competition. Her experience includes representing clients with intellectual property policing and licensing, intellectual property rights, and credit rights and revenue distribution. Sherli regularly counsels fashion and media clients...

212-309-1163
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