Intellectual Property Blog

What Kentucky High School Athletes Need to Know About NIL Rules

In 2023, Kentucky became the 31^st state to permit the monetization of an athlete’s name, image, and likeness for high school athletes. The Kentucky High School Athletic Association (KHSAA) amended two of its Bylaws to include new sections regarding students’ Name, Image, and Likeness (“NIL”) benefits, specifically allowing high school athletes to earn money from “product or business endorsements” associated with their NIL and to be paid for their work at camps or clinics. The two bylaws at issue – Bylaw 10 and Bylaw 16 – provide a comprehensive overview of the KHSAA NIL benefit program and the restrictions on compensation for high school athletes. More >

NIL Deals: What Needs to Be in the Contract (and What Gets Missed)

An athlete’s identity is a commercial asset. From the high school track star to the Olympic gold medalist, athletes’ names, images, likenesses, signatures, and other personal attributes carry legal protections and economic value. They appear on jerseys, trading cards, and promotional materials, yet the trademark and right of publicity laws governing these rights offer the ability to sell, license, assign, or transfer any aspect of an athlete’s personality. This makes it all the more important to clearly identify and address both at the outset to avoid disputes. More >

How to Structure NIL the Right Way from the Start

In the ever-changing landscape of college and youth athletics, athletes need to make sure they have a structure in place to both protect and easily monetize their most important and valuable asset: themselves. In the Name, Image, and Likeness (“NIL”) era, athletes have never had more power as it relates to compensation for who they are and what they can do. However, with that power likewise comes pitfalls and risks that each athlete needs to consider before they sign any deal. Before any athlete signs any NIL contract, they need to have a structure in place that properly protects them, their brand, and their rights while also allowing enough flexibility to quickly and efficiently capitalize on opportunities when their value is perceived to be at the highest. More >

How Athletes Can Protect Their NIL Online

A Practical Guide to Monitoring, Enforcement, and Brand Protection

For today’s athletes, visibility is both an opportunity and a risk. The same platforms that help build a personal brand also make it easy for others to misuse an athlete’s name, image, or likeness for their own gain. Many student‑athletes experience this when they stumble across a fake merch page, an impersonation account, or a video ad using their image without permission.

To respond effectively and quickly athletes need a structured notice‑and‑takedown strategy. Before diving into enforcement, it’s helpful to understand what NIL actually is and why the law treats it differently from other forms of intellectual property. More >

Who Owns the Moment? Rights in Sports Photos and Videos

One of the most addictive parts of sport is its ability to capture our imagination and create enduring memories. If we are lucky, we can capture visual depictions of those moments to relive the memories. Whether we are capturing the experience in person on our cameras or at home and watching the experience on our televisions or through social media, sports memories and video or photographic depictions of those memories go hand-in-hand. For me it was Kirk Gibson rounding the bases after his 1988 game winning homerun and Reggie Miller’s 8 points in 8.9 seconds (a/k/a the night he  directed a choke gesture to Spike Lee). For my son, by far the biggest sports fan I know, it is probably a tie between Omar Cooper’s toe-tap game-winning touchdown over Penn State or the Sports Illustrated cover-worthy diving touchdown by Indiana’s Heisman-winning quarterback that sealed Indiana’s improbable national championship. Many people reading this will know those images. But how? Not everyone watched those games. Those memories were captured and redisplayed. Many people claim rights in those redisplayed memories.   More >

Opening the Door to Maximum Brand Value in a Post-House World

An athlete’s name, image, and likeness (“NIL”) are part of his or her brand. An athlete’s name, image, and likeness are all valuable assets. Professional athletes often protect their NIL, and now, as a result of the House v. NCAA settlement, student athletes can do the same.   More >

When Knowledge Isn’t Enough: What Cox v. Sony Means for DMCA Agents

Can an online service provider be held liable for copyright infringement simply because it knows infringement is occurring and does not immediately terminate a user’s access? On March 25, 2026, the U.S. Supreme Court answered that question with a decisive no, delivering a unanimous opinion. More >

From Barrel to Brand: When Legal Strategy Fuels Growth

Most distilleries think about law in terms of compliance.
Permits. Labels. Distribution. Avoiding risk. 

But when legal strategy becomes part of the business strategy, something powerful happens.

Instead of asking, “How do we stay out of trouble?”
The better question becomes: What becomes possible? 

Thinking of a strong legal strategy as a key ingredient to a winning recipe helps distilleries optimize intellectual property. When intellectual property counsel can work closely with a business from the start, counsel is able to learn more about the business and its goals. This collaboration can result in the  development of stronger, more enforceable marks, clear trademark and copyright portfolios, and robust intellectual property agreements protecting those intellectual property assets. 

Early collaboration between intellectual property counsel and business helps guide the business’s decision-making process in a way that is legally sound, reducing risk and increasing momentum for brand expansion. This may mean ensuring that client’s own all the intellectual property in work for hire agreements, crafting policies to protect company brands, and formulating terms and conditions governing the use of company marks or even website terms and conditions of use. Working closely with intellectual property counsel ensures that as your bourbon ages to perfection, so does your IP. More >

Claude Isn't Your Lawyer, and the Information You Share with It Isn't Privileged

Generative artificial intelligence (“AI”) tools like Claude, ChatGPT, and Gemini are heavily relied on by people in everyday life. In a lot of ways, they have replaced Google or other general search engines. It is no surprise, therefore, that people now turn to these same tools to answer legal questions. Sometimes those questions are personal and contain facts and information that the person would not share with anyone but an attorney. They may be admissions of guilt or liability or even information that suggests future wrongdoing, and when shared with a person’s attorney, they are privileged. The other side in a legal proceeding does not have any rights to privileged information, but is that the case where the information is submitted to generative AI tools? An answer is beginning to emerge, and it should give all who use these tools pause: prompts and questions submitted to generative AI tools are not privileged. Other parties involved in future litigation and even the police or investigative bodies can likely read everything submitted to those online tools, which are quickly becoming a trap for the unwary.  More >

Design That Deserves a Toast: How IP Law Influences Alcohol Branding

In January, there is an official celebration day known as National Beer Can Appreciation Day. That’s really a thing; it occurs once a year to celebrate January 24, 1935, the historic day when beer was first sold in cans.

So that momentous occasion is inspiring us in the Intellectual Property Services Group here at McBRAYER to explain the types of intellectual property protections available to protect the appearance of beer cans.  More >