You need “name, image, and likeness” (NIL) rights to use an individual’s name, voice, image, or AI replica.
The Internet and social media have rapidly multiplied the ways companies can promote their businesses and products, while drawing attention to important legal questions about ensuring these digital marketing initiatives are executed within legal guardrails. And AI‘s use in creating marketing content for these digital platforms has taken us into even deeper waters.
One legal issue that is easily overlooked, particularly when working at the speed at which social media and AI content is created and posted, is the publicity rights of individuals a company features in its marketing campaigns and media presence, including social media influencers, celebrity endorsers, customers, employees, and business partners. Perhaps the company’s website features a customer review video or how-to instructions hosted by an employee. Or maybe the company’s social media includes an AI-generated replica of a celebrity.
These publicity rights, or “name, image, and likeness” (NIL) rights, refer to an individual’s ownership of the elements of their persona. Each individual has a “right of publicity” in their name, image, likeness, voice, and other identifiable aspects of their persona. The state laws that protect this right of publicity allow an individual to control and profit from the use of their persona, and to prevent others from appropriating and exploiting their persona for commercial gain. Legal claims for unauthorized use of NIL rights are not uncommon – as an example ripped from the headlines, the iconic Motel 6 spokesman, Tom Bodett, known for telling us “we’ll leave the light on for you,” recently sued the hotel chain for using his name and voice on their reservations phone line without his consent. Bodett v. G6 Hospitality LLC, No. 25-04854 (S.D.N.Y. filed June 9, 2025).
When negotiating agreements with an individual or business partner that a company may want to feature in a media campaign, NIL rights must be considered. Boilerplate agreements often include just a basic publicity provision that may only require each party’s consent for publicity or press releases. But if the company plans to include any elements of an individual’s persona in those media campaigns, then it must secure NIL rights. And in the AI era, more specialized NIL rights may need to be acquired to use an individual’s digital persona and AI-generated replicas.
The bottom line is that companies and their marketing teams need to ensure their agreements include NIL rights where appropriate, and to consider the additional complexity introduced by AI content, in order to ensure they have the necessary rights to feature individuals in their marketing and media and to avoid legal liability for unauthorized exploitation of an individual’s publicity rights.
