NIL Rights in Indiana

The concept of the right of publicity, sometimes referred to as “name, image, and likeness” (NIL) rights, particularly as they apply to National Collegiate Athletic Association (NCAA) student-athletes, has gained significant attention in recent years, especially with the rise of social media and the increasing commercialization of personal brands. Indiana’s right of publicity, codified at Indiana Code 32-36, provides a robust framework for protecting these rights. This article delves into the specifics of Indiana’s rights of publicity, what those rights entail, who is entitled to them, how to prevent misappropriation, and ways to monetize these rights.

What is the Right of Publicity?

The right of publicity is a legal principle that allows individuals to control the commercial use of their personal identity. This includes their name, image, likeness, voice, signature, and other distinctive characteristics. Essentially, it allows individuals to prevent others from exploiting their persona for commercial gain without permission.

In Indiana, the right of publicity is defined under Indiana Code 32-36-1-7. It encompasses a personality’s property interest in their name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms. This right is applicable not only during a person’s lifetime but can also extend posthumously, providing protection for up to 100 years after death.

Who is Entitled to Rights of Publicity or NIL Rights?

Rignts of publicity are not limited to celebrities or public figures. While these individuals are often the most visible beneficiaries, anyone whose identity has commercial value can claim these rights. This includes athletes, entertainers, influencers, and possibly ordinary individuals who have gained a certain level of recognition.

In Indiana, the right of publicity applies regardless of a personality’s domicile, residence, or citizenship, as long as the act or event of misappropriation occurs within the state. This broad applicability ensures that individuals from various backgrounds can protect their NIL rights within Indiana’s jurisdiction.

Indiana Rights of Publicity and the NCAA NIL Rules

Although this article uses the terms “rights of publicity” and “NIL rights” more or less interchangeably, the latter term often refers specifically to the rights of  student-athletes in the NCAA, which has its own set of rules governing the use of those rights. Those rules contemplate that states may enact laws dealing specifically with the NIL rights of student-athletes and include default provisions that apply in the absence of such statutes.  Student-athletes who do not comply with the NCAA rules risk the loss of eligibility.  Indiana Code 32-36 deals with rights of publicity, but it is not an NIL statute as defined by the NCAA rules, and this article does not address those rules.  Although more than 30 states have enacted NIL statutes as contemplated by the NCAA, Indiana is not yet among them.

Preventing Misappropriation of the Right of Publicity

To prevent the unauthorized use of one’s identity, individuals can take several proactive steps:

Monitor Usage: Regularly monitor the use of your name, image, and likeness across various platforms. This can help you identify unauthorized uses quickly.

Legal Agreements: Use contracts and agreements to explicitly outline the terms of use for your NIL rights. Ensure that any commercial use is documented and agreed upon in writing.

Seek Legal Recourse: If you discover unauthorized use, consult with a legal professional to explore your options for enforcement. Indiana law provides for damages, profits derived from unauthorized use, and injunctive relief.

Monetizing NIL Rights

The commercialization of rights of publicity has opened up numerous opportunities for individuals to generate income. Here are some common ways to monetize these rights:

Endorsement Deals: Partner with brands to promote their products or services. This can include social media posts, commercials, and other forms of advertising.

Merchandising: Create and sell merchandise featuring your name, image, or likeness. This can range from clothing and accessories to digital products like NFTs.

Appearances and Events: Charge for personal appearances, speaking engagements, or participation in events. This is particularly common for athletes and entertainers.

Social Media Monetization: Leverage your social media following to earn money through sponsored posts, affiliate marketing, and ad revenue.

Licensing Agreements: License your NIL rights to third parties for use in various media, including films, video games, and publications.

Conclusion

Indiana’s right of publicity law provides a comprehensive framework for protecting and monetizing NIL rights or rights of publicity. By understanding these rights and taking proactive steps to prevent misappropriation, individuals can safeguard their identity and capitalize on their personal brand. Whether you’re a celebrity, athlete, or an emerging influencer, the right of publicity offers valuable protections and opportunities in today’s digital age.

 

If you need expert legal advice on NIL rights in Indiana, trust Harshman, Ponist, Smith & Rayl, LLC. Our experienced team is dedicated to helping you ensure that your rights and brand are protected. Contact us today to schedule a consultation and take control of your NIL opportunities!