In the old days, protecting your image meant making sure nobody used an embarrassing yearbook photo without permission. Today, it means something much bigger: your name, face, voice, signature, social media handle, catchphrase, logo, personal brand, and even AI-generated look-alikes may all carry real commercial value. Welcome to the modern world of trademark law and protecting image and likeness, where a person’s identity can be both a reputation and a revenue stream.
For celebrities, athletes, influencers, founders, entertainers, and creators, image and likeness are not just vanity assets. They can drive endorsement deals, merchandise sales, speaking fees, licensing agreements, and brand partnerships. Even for small business owners and online creators, a recognizable name or visual identity can become a valuable business asset. The tricky part is understanding which legal tool protects what. Trademark law, right of publicity, copyright, contracts, advertising rules, and privacy law all overlap, but they do not do the same job.
This guide explains how trademark law works with image and likeness protection, where it falls short, and what practical steps individuals and businesses can take to protect personal brands in the United States.
What Does “Image and Likeness” Mean?
“Image and likeness” generally refers to the recognizable elements of a person’s identity. That can include a person’s name, photograph, portrait, voice, signature, nickname, stage name, distinctive appearance, gestures, or other identifying features. In college sports, the phrase “name, image, and likeness,” often shortened to NIL, is commonly used to describe an athlete’s ability to profit from endorsements, sponsorships, appearances, and other commercial uses of their personal brand.
But NIL is not limited to athletes. A chef with a signature cooking style, a YouTuber with a memorable intro phrase, a fashion designer whose name appears on apparel, or a musician whose voice is instantly recognizable may all have identity-based value. The law cares because unauthorized use can mislead consumers, damage reputation, or allow someone else to profit from identity without permission.
Trademark Law: The Brand Protection Tool
Trademark law protects words, names, symbols, designs, slogans, sounds, or other source identifiers used in commerce. In plain English, a trademark helps consumers know where a product or service comes from. Nike’s swoosh, McDonald’s golden arches, and a creator’s branded stage name can all function as trademarks if they identify a commercial source.
When it comes to personal identity, trademark law can protect a name, nickname, logo, phrase, or signature look if it is used as a brand. For example, a fitness influencer might use their name on workout programs, apparel, supplements, and coaching services. A musician might register a stage name for entertainment services and merchandise. A public speaker might protect a personal brand used for books, events, and consulting.
However, trademark law does not automatically protect every human face, name, or personality trait. The key question is whether the identity element is being used to identify and distinguish goods or services in the marketplace. A person simply being famous is not the same as owning a trademark in every possible use of their name.
Trademark Registration and Living Individuals
One important trademark rule is that a trademark application involving the name, portrait, or signature of a living individual usually requires written consent from that person. This prevents someone from registering another person’s identity as a trademark without permission. For instance, a company generally cannot register a celebrity’s name for merchandise unless it has authorization.
This rule matters for entrepreneurs, creators, and agencies. If a brand is built around a real person, the trademark application should include proper consent when required. If a name does not identify a living person, the applicant may need to state that clearly. Skipping this step can lead to refusal, delay, or legal conflict. In trademark law, paperwork may not be glamorous, but neither is paying lawyers to fix avoidable mistakes.
Right of Publicity: The Identity Protection Tool
The right of publicity is different from trademark law. It protects a person’s right to control commercial use of their identity. This can include name, likeness, voice, photograph, signature, or other recognizable aspects of persona. Unlike trademark law, which focuses on consumer confusion and brand source, right of publicity focuses on unauthorized commercial exploitation of a person’s identity.
For example, imagine a beverage company places a famous actor’s face on an advertisement without permission. Even if the company does not register a trademark, the actor may have a right-of-publicity claim because the ad uses the actor’s identity for commercial benefit. Similarly, if a business uses an influencer’s photo to imply endorsement, the issue may involve both right of publicity and false endorsement under trademark law.
Right-of-publicity law is mostly governed by state law, which means protection varies across the United States. California, New York, Tennessee, Florida, Indiana, and many other states recognize some version of publicity rights, but the details differ. Some states protect post-mortem rights after death. Some give stronger protection to voice or digital replicas. Some have clearer exceptions for news, parody, commentary, art, or public interest.
Trademark Law vs. Right of Publicity
Trademark law and right of publicity often travel together, but they are not twins. Think of them as cousins who show up at the same family reunion and argue over who gets the last slice of pie.
Trademark law asks:
Is someone using a name, image, symbol, or identity feature in a way that confuses consumers about the source, sponsorship, affiliation, or endorsement of goods or services?
Right of publicity asks:
Is someone commercially using a person’s identity without permission?
A false endorsement claim under the Lanham Act may arise when a company uses someone’s identity in a way that falsely suggests approval, sponsorship, or association. A right-of-publicity claim may arise even when consumer confusion is not the central issue, as long as the use commercially exploits identity without consent.
Common Examples of Image and Likeness Problems
1. Unauthorized Endorsements
A skincare brand uses a creator’s photo in an ad saying, “Influencers love us,” even though the creator never used the product. This may trigger false endorsement, right-of-publicity, advertising, and consumer protection issues.
2. Fake Merchandise
A seller prints an athlete’s name and face on T-shirts without permission. The athlete may claim unauthorized commercial use of likeness, and if the merchandise suggests official approval, trademark claims may also be possible.
3. AI Voice or Face Replicas
An advertiser uses AI to generate a voice that sounds like a singer or a video avatar that resembles an actor. As AI tools become cheaper and more realistic, likeness protection has become a major legal issue. Several states have responded with laws focused on digital replicas, voice cloning, and performer rights.
4. Social Media Ad Misuse
A brand takes a TikTok, Instagram Reel, or YouTube clip and turns it into paid advertising without permission. Even if the original post was public, that does not mean it is free for commercial reuse. “It was on the internet” is not a legal strategy; it is what people say shortly before receiving a cease-and-desist letter.
5. Look-Alike Campaigns
An ad uses a model, robot, cartoon, or character that strongly evokes a famous person. Even without using the person’s exact name or photo, the campaign may still create legal risk if consumers recognize the intended identity connection.
False Endorsement Under Trademark Law
False endorsement claims often appear when a person’s identity is used in a way that implies sponsorship or approval. Under U.S. trademark law, the issue is whether the use is likely to confuse consumers about affiliation, connection, or endorsement.
Courts may consider factors such as how recognizable the person is, how the image or name is used, whether the person and product are related, whether consumers are likely to believe there is a deal, and whether the advertiser acted intentionally. For example, using a famous basketball player’s image to sell sneakers creates a very different risk profile than mentioning that player in a news article about sports history.
Context matters. A documentary, biography, parody, review, or news story may have First Amendment protection. A product label, paid ad, branded campaign, or commercial landing page usually receives much closer scrutiny.
Free Speech, Parody, and Artistic Use
Not every use of someone’s name or likeness requires permission. U.S. law often protects news reporting, commentary, criticism, parody, scholarship, documentaries, and expressive works. A film can refer to a real public figure. A journalist can publish a newsworthy photograph. A comedian can parody a celebrity. A critic can discuss a brand or public personality.
Still, free speech is not a magic wand. If a use becomes a commercial brand identifier or falsely suggests endorsement, legal protection may shrink. The Supreme Court’s modern trademark parody decisions show that courts pay close attention to whether a disputed use is expressive commentary or whether it functions as a source identifier for goods.
For creators and marketers, the practical lesson is simple: commentary is safer than confusion. If the audience may reasonably think the person approved, sponsored, or partnered with the product, get permission or rethink the campaign.
NIL, Athletes, and Personal Brand Deals
Name, image, and likeness rules have transformed college sports. Student-athletes can now receive compensation from third parties for endorsements, social media promotions, appearances, camps, autographs, and other NIL opportunities, subject to applicable rules and policies. This has created huge opportunities, but it has also made contracts, trademarks, and compliance more important.
An athlete who plans to build a long-term brand should think beyond one sponsored post. A strong NIL strategy may include trademark clearance for a personal logo, written agreements for endorsements, rules for photo usage, approval rights, payment terms, morality clauses, and limits on how long a brand can use the athlete’s content.
For example, if a college quarterback signs a deal with a local car dealership, the contract should clearly state whether the dealership can use the athlete’s photo on billboards, social media, TV ads, website banners, and future promotions. It should also state when the license ends. Otherwise, the athlete may graduate and still find their face smiling next to a discount SUV promotion from three seasons ago.
AI and the New Likeness Problem
Artificial intelligence has changed the image and likeness conversation. AI tools can generate realistic photos, voices, videos, avatars, songs, and endorsements. This creates new risks for celebrities and everyday people alike. A person does not need to be world-famous to be harmed by a fake ad, synthetic video, or unauthorized voice clone.
Traditional trademark law can help when AI-generated content misleads consumers about endorsement or source. Right-of-publicity law can help when identity is commercially exploited. Privacy, defamation, copyright, contract, and consumer protection laws may also apply. But AI has exposed gaps in the legal system, especially because rights vary by state and technology moves faster than legislation.
Some states have begun updating laws to address digital replicas and voice misuse. Tennessee’s ELVIS Act, for example, expanded protections against unauthorized use of voice and likeness, especially in response to AI concerns in the music industry. California and New York have also taken steps involving digital replicas, performer rights, and advertising transparency. The direction is clear: lawmakers are increasingly treating realistic identity replication as a serious commercial and personal harm.
How to Protect Your Image and Likeness
1. Identify Your Brand Assets
Start by listing what makes your identity commercially recognizable. This may include your legal name, stage name, social handle, logo, signature phrase, portrait style, voice, mascot, character, slogan, or recurring visual theme. If people associate it with your goods or services, it may be protectable.
2. Clear the Trademark Before You Build
Before investing in a personal brand, search for existing trademarks and similar names. A creator may love a catchy brand name, but if another business already uses a confusingly similar mark in related services, trouble may be waiting. Trademark clearance is much cheaper than rebranding after launch.
3. Register Key Trademarks
Federal trademark registration can provide nationwide benefits, public notice of ownership, legal presumptions, and stronger enforcement options. Personal names, stage names, logos, and slogans may be registrable if they function as trademarks and meet legal requirements.
4. Use Written Licenses
Never rely on vague permission for commercial use of likeness. A proper license should define what identity elements may be used, where they may appear, how long the use lasts, whether the license is exclusive, how compensation works, and who approves final materials.
5. Monitor Unauthorized Use
Set up alerts for your name, brand, and images. Search marketplaces, social media platforms, ad libraries, and domain names. Unauthorized use often spreads quietly before it becomes obvious. Early detection makes enforcement easier.
6. Use Clear FTC Disclosures
Influencers, endorsers, and brands must clearly disclose material connections when promoting products. If a creator is paid, receives free products, owns the brand, or has another relationship that could affect credibility, disclosure should be clear and hard to miss. Tiny buried hashtags are not exactly the gold standard of transparency.
7. Keep Control of AI Rights
Modern contracts should address AI. If a brand wants to scan, clone, train on, reproduce, modify, or simulate your face or voice, the agreement should say so clearly. Many creators now restrict AI-generated replicas unless separately approved in writing.
What Businesses Should Do Before Using Someone’s Image
Businesses should treat identity rights with the same seriousness as music licenses, photo rights, or software permissions. Before using a person’s name, image, voice, or likeness in advertising, ask three questions:
First, do we have written permission? Second, could consumers think this person endorses us? Third, does the use comply with advertising, trademark, publicity, privacy, and platform rules?
When in doubt, use a release. A good release should cover the exact media channels, duration, territory, editing rights, payment, approval process, and whether AI or synthetic versions are allowed. For campaigns involving minors, athletes, union performers, celebrities, or deceased personalities, get specialized legal guidance.
Experiences and Practical Lessons From Real-World Image and Likeness Protection
In practical brand work, the biggest image and likeness problems usually do not begin with evil masterminds in dark rooms. They begin with casual assumptions. A marketing manager grabs a photo from a public Instagram post. A designer uses a celebrity-inspired illustration because it “doesn’t show the exact face.” A small business reposts a customer video and boosts it as an ad. A founder names a product after a public figure because the joke seems harmless. Then the campaign gains traction, and suddenly the legal department gets invited to the party. Nobody likes that party.
One common lesson is that permission should be specific. A person may agree to appear in one organic social media post, but that does not automatically allow the brand to use the same image in paid ads, email campaigns, product packaging, billboards, affiliate promotions, or AI-generated variations. The difference between “Can we post your photo?” and “Can we use your identity across all commercial channels worldwide forever?” is enormous. Creators should pay close attention to words such as perpetual, irrevocable, sublicensable, transferable, and derivative works. These terms can quietly turn a simple collaboration into a broad identity license.
Another lesson is that personal brands need trademark planning early. Many creators wait until they have a large audience before protecting a name or logo. By then, copycats may already be selling merchandise, registering similar domains, or filing questionable trademark applications. A creator who sells courses, clothing, cosmetics, fitness plans, entertainment services, or digital products should consider whether their brand name functions as a trademark. Early clearance and registration can prevent expensive cleanup later.
A third lesson involves reputation control. Money is not the only issue. A person may reject certain products because they conflict with values, audience expectations, sponsorship categories, religious beliefs, health concerns, family-friendly positioning, or existing contracts. A comedian may not want their face used to sell financial products. A student-athlete may be restricted from endorsing certain categories. A wellness creator may not want their image placed next to exaggerated medical claims. Contracts should give the person approval rights over context, captions, edits, and campaign placement.
AI has made these concerns more urgent. A voice recording from one campaign could theoretically be used to generate new scripts. A photo shoot could become training material for synthetic images. A short video clip could be transformed into an avatar. Because of that, modern likeness agreements should clearly say whether AI training, cloning, digital replicas, deepfake-style edits, or synthetic endorsements are allowed. Silence is risky. If AI rights are not mentioned, both sides may later disagree about what was permitted.
For businesses, the safest experience-based rule is simple: document consent before the campaign launches. Keep signed releases, model agreements, influencer contracts, usage approvals, disclosure records, and final creative files. If a dispute arises, organized documentation can make the difference between a quick resolution and a long, expensive argument. For individuals, the best rule is equally simple: treat your identity like an asset before someone else does. Your name, face, voice, and reputation may be more valuable than you think, especially in a marketplace where attention is currency and authenticity sells.
Conclusion
Trademark law and protecting image and likeness are now central issues in personal branding, influencer marketing, entertainment, sports, AI, and digital commerce. Trademark law helps protect names, logos, slogans, and identity elements that function as brands. Right-of-publicity law helps prevent unauthorized commercial use of a person’s identity. False endorsement rules help stop misleading suggestions of approval or affiliation. FTC rules require transparency when endorsements involve payment or other material connections.
The smartest strategy is not to wait for misuse. Creators, athletes, entrepreneurs, and public figures should identify their brand assets, register important trademarks, use clear contracts, monitor unauthorized use, and control how their likeness appears in advertising and AI-generated content. Businesses should secure written permission before using anyone’s identity commercially. In a world where a face can become a brand and a voice can be cloned, protecting image and likeness is not just a legal issue. It is brand survival with better paperwork.
