Leveling the Playing Field

Understanding Tennessee’s New Name, Image, and Likeness Law

Introduction

College sports is a large and booming business. In particular, the “big three”–football, basketball and baseball–are money-making franchises for many schools in the Power 5 conferences.1 Historically, college student-athletes (“athletes”) have been prohibited from participating in the financial rewards of the college sports in which they compete. However, momentum has been slowly building in college sports to alter the old standard created and governed by the NCAA regarding financial benefits and college athletes. Recent developments have set the stage to dramatically alter the financial playing field of college sports.2 Although revenue sharing and direct compensation remain off limits, several states, including Tennessee, have passed legislation that will allow college athletes to profit from their individual name, image, and likeness (“NIL”).3

A Short History Of NIL (Rights Of Publicity)

While typically associated with athletes and entertainers, every individual domiciled in the State of Tennessee possesses a right of publicity. The Tennessee Court of Appeals first recognized the right in a landmark case concerning the Estate of Elvis Presley in Elvis Presley Int’l Memorial Foundation v. Crowell. 4 In its decision, the Court of Appeals held that the Tennessee Constitution provides a common law right of publicity under Article I, Section 8 (deprivation of life, liberty, or property).5 In 2006, the courts revisited the issue and confirmed that an individual’s property rights under the Tennessee Constitution specifically includes “the property right in the use of one’s name, photograph or likeness.”6 Additionally, the Tennessee General Assembly codified the right of publicity with the enactment of the Tennessee Personal Rights Protection Act (TPRPA), which provides similar rights as those enumerated in the Tennessee Constitution. Under the TPRPA, “every individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.”7 In comparison to most other jurisdictions, Tennessee provides broad protections (even more so than California and New York), which include an individual’s rights of publicity being freely assignable and licensable, extending to persons who are deceased regardless of commercial exploitation during the person’s lifetime. Further, the right is descendible to executors, assigns, heirs, or devisees.8 The breadth of Tennessee’s common law and statutory rights, in conjunction with other favorable laws like the repeal of the state income tax, creates an environment that is highly favorable to those individuals interested in utilizing their individual right of publicity.9

Summary Of The Tennessee NIL Law

On May 11, 2021, Tennessee Governor Bill Lee signed into law House Bill 1351, which is the General Assembly’s direct attempt to address the long-simmering controversy around the ability of college athletes to profit from the use of their individual NIL. The law has an effective date of January 1, 2022. At the time of passage,

(continued on page 12)

Be the first person to email the correct answer to Adrienne.BennettCluff@ nashvillebar.org, and your name—along with the correct answer—will appear in the next issue.

AUG/SEPT GOLDEN OLDIES

Congratulations to Ronald McNutt of

Bureau of Workers’ Compensation

for correctly identifying the individuals in last issue’s photo! From left to right: Mike Mondelli, Frank Grace, Tommy Peebles, Tom Peebles, Bill Purcell, and Patsy Cottrell.

2021 Nashville Pride Parade

Thank You to Our Sponsor