Ropes & Gray was a sponsor of the ICR Conference on January 13-15 in Orlando, which brought together public and private company management teams, institutional investors, sell side research analysts, investment bankers, private equity professionals and select media for discussions around consumer trends and public company prospects. Our partners Erica Han and Jackie Cohen spoke on a panel highlighting Hot Topics in Publicity Rights (aka "NIL") for Consumer Brands. Here are the key takeaways from their panel:
What are Publicity Rights ("NIL")?
"NIL" - name, image and likeness - refers to an individual's right to control aspects of their identity which also includes nicknames, voice and biographical information. Violation of NIL involves the use of an individual's recognizable features without their permission for commercial purposes. For founder-led brands and brands looking to use influencer and/or celebrity endorsements, below are some key considerations to keep in mind when negotiating your NIL contracts.
Takeaways for Founder-Led Brands
- Identity is often an emotional topic for founders, which requires careful handling of negotiations.
- Consider how publicity rights are used, how valuable they are to the brand, and what arrangements (written and unwritten) are in place.
- Contracts should set clear expectations and consider future business developments.
- For eponymous brands, ensure the company owns the trademark and has written consent to register trademarks.
Takeaways for Influencer and Endorser Arrangements
- Public use of an individual's NIL by a brand is likely to be considered "commercial use".
- Brands can be liable for their influencers' statements about their products/services.
- Brands must balance risk management and compliance with the endorser's desire to maintain an "authentic voice".
- Consider the individual's expectations and financial motivations when determining NIL use and permission policies.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.