Name, image, and likeness (“NIL”) rights have been a “hot” topic lately. However, the focus seems to be on sports celebrities, particularly college and high school sports athletes. However, NIL and publicity rights have always applied to a much broader range of celebrities and personalities. For example, as reported here, musician and rapper Clifford “T.I.” and Tameka “Tiny” Harris have just won a $71 lawsuit against a toymaker MGA Entertainment. The jury verdict awarded the couple $17.8 million in actual damages and $53.6 million in punitive damages. See the Deadline report here.

At issue was MGA’s manufacture and sale of O.M.G. dolls that appeared to be designed and dressed to look similar to members of a band called OMG Girlz. For example, one doll had long hair that was hot pink on one side and black on the other, wearing a black and silver outfit. It was similar to what was worn by one of the band members during public performances. Likewise, a second doll had a hairstyle, in DayGlo yellow and green, that was similar to the “look” of a band member during a public performance. For a few comparison photos, see here.

The trial took three weeks in Los Angeles. During the trial, evidence was presented showing that the dolls copied the looks of the band members from various performances and public events. Evidence was also produced showing consumers and social media fans believing that, and attorneys cited social media posts from fans who thought the dolls were approved or inspired by the band because they looked so similar. The toy manufacturer disputed this evidence and argued that it did not misappropriate the identity of the band or infringe on their trade dress.

Legally, the case is interesting because it combined California state law claims concerning NIL with federal law trade dress claims under the Lanham Act. It is well known that the Lanham Act protects trademarks, but it is less well known that the Lanham Act protects trade dress. 15 U.S.C. § 1125(a). NIL rights protect the likeness and unique characteristics of a person, such as face, voice, how they walk, etc. A person who uses the NIL of another without permission can be held liable for damages.

Most think of a trade dress claim as applying exclusively to how goods and products are designed and packaged. But, the Lanham Act applies equally well to the “trade dress” of a person. The usual definition of trade dress is “the non-functional physical detail and design of a product or its packaging,” which identifies and distinguishes the product from the products of others. It is generally the “total image” or “look” of the product, including aspects like size, shape, color, color combinations, texture, etc. As said, and as shown in the O.M.G. Girlz case, trade dress also applies to the image or “look” of celebrities. The advantage of suing for trade dress infringement is the level of damages that can be claimed under the Lanham Act, including a form of disgorgement of profits. The $17.8 million obtained as damages in the case represented the profits made by MGA Entertainment from the sale of the O.M.G. dolls.

Contact The NIL and Trade Dress Infringement Attorneys At Revision Legal

For more information, contact the experienced NIL and Trade Dress Infringement Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.

Understanding Trade Dress in the Context of Celebrity Identity

The Lanham Act’s trade dress provision — 15 U.S.C. § 1125(a) — protects the “total image” or “overall appearance” of a product or its packaging when that appearance has acquired secondary meaning and when use by a third party creates a likelihood of consumer confusion. Courts have long extended this protection beyond product packaging to the distinctive visual appearance of celebrities and public figures when that appearance has become associated in consumers’ minds with a particular commercial identity.

The landmark case establishing that principle is Waits v. Frito-Lay, Inc., 978 F.2d 1093 (9th Cir. 1992), in which the Ninth Circuit held that Tom Waits had viable Lanham Act claims when Frito-Lay used a voice that imitated his distinctive singing style in a radio commercial. The court reasoned that a performer’s distinctive style or appearance can function as a form of identification — essentially a trademark — for commercial purposes. The OMG Girlz case is a direct application of that principle to a visual trade dress claim.

How the Jury Reached $71 Million

The $71 million verdict breaks into two components: $17.8 million in actual damages and $53.6 million in punitive damages. The actual damages figure represents MGA Entertainment’s profits from the O.M.G. doll line — essentially a disgorgement of the profits derived from the infringing product line. Under 15 U.S.C. § 1117(a), a Lanham Act plaintiff is entitled to recover the defendant’s profits, subject to the court’s discretion to adjust the award up or down based on the circumstances. Disgorgement is an attractive remedy precisely because it can be large when the infringing product was commercially successful — the plaintiff does not need to prove that each sale caused a specific dollar of lost revenue.

The punitive damages award — roughly three times actual damages — reflects the jury’s determination that MGA’s conduct was willful or malicious under California law. California allows punitive damages in civil cases where the defendant acted with oppression, fraud, or malice. Punitive damages are not available under the Lanham Act itself, but they are available under California’s right of publicity statute, Cal. Civ. Code § 3344, which was the state-law vehicle for the NIL claims in the case. The combination of federal Lanham Act disgorgement and California punitive damages is what produced the headline number.

NIL Rights Under California Law

California’s right of publicity statute, Civil Code § 3344, prohibits the knowing use of another person’s name, voice, signature, photograph, or likeness for commercial purposes without that person’s prior consent. The statute applies to both celebrities and non-celebrities. It provides for actual damages, disgorgement of profits, and punitive damages, as well as attorney’s fees to a prevailing plaintiff.

California also recognizes a common-law right of publicity that extends beyond the statutory categories of name, voice, signature, photograph, and likeness to encompass any indicia of identity — including, as the OMG Girlz case illustrates, a performer’s distinctive style, color palette, hairstyle, and stage aesthetic. The common-law right is broader than the statute and has been applied in cases involving commercial uses of a celebrity’s “persona” in circumstances that the statutory list would not cover.

The interplay between federal trade dress law and California’s right of publicity creates powerful combined claims. A plaintiff who can establish both that the defendant created consumer confusion (the trade dress/Lanham Act element) and that the defendant commercially exploited a distinctive identity without consent (the NIL/right of publicity element) has access to two independent damages frameworks, and the jury can award under both.

Key Lessons for Businesses Creating Character-Based Products

• The combination of a trademarked personal aesthetic and consumer recognition of that aesthetic can be worth tens of millions of dollars in a single lawsuit — take NIL clearance seriously before product design is finalized, not after
• Social media evidence of consumer confusion is admissible and powerful — if fans online are speculating that your product is endorsed by or based on a real person, screenshot those posts and take legal counsel before launch
• The scope of trade dress protection for celebrity appearance is not limited to exact reproductions — courts look at overall impression, not whether each individual element is identical
• If you are designing products inspired by real performers, bands, or athletes, a licensing agreement is almost always less expensive than litigation, and it provides a complete defense to Lanham Act and right of publicity claims
• Punitive damages in California NIL cases mean that a court can hold individual officers and directors personally liable if they directed or ratified the infringing conduct

The T.I. and Tiny Harris verdict is a reminder that NIL rights are not limited to sports — they apply to musicians, actors, social media influencers, and any person with a commercially valuable and recognizable identity. If your business creates products, characters, or marketing campaigns that draw on real people’s identities, you need to secure proper clearances. Contact the NIL and trade dress infringement attorneys at Revision Legal through the form on this page or call (855) 473-8474.