Why Passive Monitoring Isn’t Enough for NIL Rights

I have previously written about how the right of name, image, and likeness (NIL) is becoming a serious issue on content platforms. Unauthorized representations of public figures are increasingly common. For example, AI-generated videos are now creating realistic depictions of individuals such as Elon Musk giving speeches or interviews that never occurred.

From some informal testing, these videos can receive between 200,000 and 300,000 views in just a few days. Many include only weak disclaimers such as “for entertainment purposes” or “parody.” However, it is doubtful that these would qualify for First Amendment or fair use protection unless they are genuine parodies. True parody requires commentary or criticism about the subject being parodied. Using a well-known public figure to make a twenty-minute speech about aliens or global conspiracies is not parody.

Even more concerning is that many viewers seem to believe these videos are real. Some of the comments may come from bots, but not all.

I want to stress to content creators and public personalities that they should actively seek to remove unauthorized NIL representations. NIL protections are primarily governed by state law, and federal protections for trademarks or copyrights may not apply. The consequences of ignoring unauthorized content can extend far beyond reputation management.

Business and Sponsorship Considerations

If you are a creator or personality who promotes products or services, unauthorized NIL videos could interfere with your marketing and sponsorship deals. Many promotional contracts include exclusivity clauses that restrict you from endorsing similar or competing products. The existence of widespread unauthorized content could weaken those exclusivity guarantees.

Such contracts often include standards of conduct requiring that the promoter avoid behavior that might disparage the brand. A sponsor could argue that the presence of unauthorized videos has diluted your image or created reputational risk, even if you had no involvement in the content.

For that reason, I would suggest that sponsors include requirements that promoters actively monitor and pursue takedowns of unauthorized NIL material. This can serve as both a measure of brand protection and a form of accountability in the agreement. While few promoters currently take these steps, that is likely to change as the problem grows.

False Representation and the Lanham Act

Although NIL protection is largely a matter of state law, federal law may still come into play in certain cases. Under Section 43(a) of the Lanham Act, a person may bring a claim for false endorsement or false association if their identity is used in a way that misleads consumers into believing they approved or are affiliated with the content. This can be particularly relevant when AI-generated videos are used to promote or appear to promote a product or service.

However, the Lanham Act does not cover every instance of unauthorized NIL use. It applies primarily when there is a commercial misrepresentation that could confuse consumers. It does not, by itself, provide general protection for personal likeness. That distinction is important to keep in mind, as many of the current AI-generated videos do not clearly fit into commercial use, even if they harm reputations.

Legal and Enforcement Risks

There are also long-term legal implications for failing to act. If a personality does nothing about unauthorized NIL videos for an extended period, that inaction could later weaken their ability to enforce their rights.

For example, if you decide to bring a claim for defamation, violation of publicity rights, or unauthorized use of your likeness, a defendant could argue that you tolerated or acquiesced to similar conduct for months. Unlike trademark or copyright law, which have established systems of protection and renewal, NIL claims often depend on state-level doctrines such as laches, which penalize unreasonable delay in asserting rights.

A court may also view a long period of inaction as evidence that the harm is not irreparable. This would make it more difficult to obtain an injunction to stop further unauthorized use.

The Case for Being Proactive

From a business perspective, being proactive about unauthorized NIL content is not simply about legal protection. It is also about maintaining credibility with sponsors, protecting the integrity of your image, and preserving future enforcement rights.

Inaction can create the perception that you do not control your likeness or that you are indifferent to its use. Over time, that perception can affect both the value of your brand and your legal standing.

The best approach is to treat NIL management as part of your overall business and brand strategy. Monitoring, documenting, and pursuing removals of unauthorized content can strengthen your position both in business negotiations and in any future legal proceedings.