Abstract
The ability of high-profile athletes to commercialize name, image, and likeness (NIL) rights is at the center of many current controversies about the future of college sports in the United States. This Article describes how what we call NIL protection— largely based on publicity rights doctrines developed in the mid-20th century—is historically recent, conceptually unstable, and insufficiently scrutinized, even though it now underwrites major entertainment markets in sports. Just as baseball is a sport particularly identified with the United States, there is also a peculiarly American approach to the protection of persona. Using baseball as the central case study, the Article traces how commercialization around bats, branding, baseball cards, broadcasting, and player endorsements generated recurring disputes that helped push U.S. law from privacy-based protection toward an alienable, property-like right of publicity, crystallized in the case of Haelan Labs v. Topps. The Article then contrasts this American approach to publicity rights with the development of the English law in order to demonstrate that broad, transferable NIL rights are not an inevitable common-law development. Finally, the Article argues that the expansive regime of state-by-state publicity rights offers doctrinally incoherent protection at a significant social cost. It sketches an alternative: a more limited, non-alienable privacy-based protection to protect dignitary rights, supplemented by a passing off tort to protect commercial goodwill interests in personal identity.
Recommended Citation
Barbara Lauriat,
Name, Image, Likeness and the Great American Pastime,
130
Dick. L. Rev.
857
(2025).
Available at:
https://insight.dickinsonlaw.psu.edu/dlr/vol130/iss3/3