Your Face as Property: IP Strategies Beyond Right of Publicity

During the Second Industrial Revolution, the source of goods became more important than ever as railroads expediated travel and access to goods across the United States.[1] Today, the United States is in the midst of its third industrial revolution, a digital revolution fueled by silicon and microchips.[2] This digital revolution is unlike the previous two industrial revolutions because biometrics have become commodities.[3] The technologies and goods coming out of the digital revolution are multifaceted. First, they provide a physical good through appliances that allow for communication and shopping, among other things, across geographic borders.[4] Second, they function as a service by hosting the platforms that allow us to communicate and shop.[5] Thirdly, they collect users’ information from direct identifiers to biometric data.[6] Accordingly, as faces become commercially valuable symbols, the right of publicity alone is insufficient. A property-based intellectual property (IP) framework would rebalance power by enabling individuals to control, license, and exclude others from commercial uses of their biometric data.

State legislatures have been balancing the rapid evolution of data collection with the safety and privacy of their constituents.[7] As of February 2026, nineteen states have privacy legislation in place.[8] However, only nine states provide protections against misuse of biometric data,^[9]which is not enough in a society prone to data breaches and cyberterrorism.^[10] These threats present a unique challenge in which public figures must indeed protect their right of publicity but private individuals must also worry about their likenesses being used for commercial purposes without their knowledge.^[11] Accordingly, a lack of strong biometric data protection legislations reveal the inadequacy of treating privacy and IP as separate domains and have opened the door for new legal strategies.

For example, Illinois has the Biometric Information Privacy Act (“BIPA”);[12] Texas has Capture or Use of Biometric Identifier Act (“CUBI”);[13] and California has the California Consumer Privacy Act (“CCPA”).[14] Together, these Acts attempt to consolidate the gaps between biometric data’s proprietary nature and privacy law’s goal of awarding damages after someone’s personal information has been intruded.[15] Texas and Illinois require prior consent through notice before an individual’s biometric data is collected.[16] However, California’s CCPA simply requires the individual from which the data was sourced is notified about its use and sale.[17] It doesn’t outline a specific time period for which the collector must notify the individual sourcing the biometric data.[18] California’s approach leaves a grey area between privacy rights and right of publicity.

This grey area has led entertainment lawyers to resort to expanding IP rights, resorting to multifaceted IP enforcement strategies.[19] Most notably, Matthew McConaughey has successfully trademarked his likeness.[20] To be eligible for trademark protection the source identifier must be inherently distinctive.[21] The Supreme Court has held  that a mark can be distinctive in one of two ways. “First, a mark is inherently distinctive if ‘[its] intrinsic nature serves to identify a particular source.’”[22]“Second, a mark has acquired distinctiveness . . . when, ‘in the minds of the public, the primary significance of a [mark] is to identify the source of the product rather than the product itself.’”[23] Therefore, here, the applicant had to be a celebrity to get additional protection. 

In USPTO (Patent and Trademark Office) applications from December of 2023, McConaughey’s legal team asserted that “[t]he color(s) WHITE, BEIGE, GREEN, BLACK, BROWN, BLUE, SILVER is/are claimed as a feature of the mark. The mark consists of The actor, Matthew McConaughey, standing outdoors on a porch speaking and gesturing.”[24] One of the applications changes the location of the trademark to claim, “sitting in his living room speaking.”[25] The USPTO trademark examiner initially denied the applications, under J.K. Livin Brands, Inc., because “the applied-for mark consists of or includes matter that may falsely suggest a connection with Matthew McConaughey.”[26] However, McConaughey’s legal team responded that he “is the sole owner of the Applicant, J.K. Livin Brands, Inc.”[27] The response was enough for the USPTO to grant J.K. Livin Brands, Inc. the trademark registration.[28]

Whether trademarking one’s likeness holds up in court is yet to be seen. The scope of protection offered by the registration is also at issue. Matthew McConaughey’s lawyers have this strategy available to them because of McConaughey’s celebrity.[29] However, the applications provide specific colors and locations.[30] So, whether the protection is limited to the specimen provided or McConaughey’s likeness at-large is also at issue. Furthermore, traditional trademarks are for source identifiers.[31] McConaughey’s legal team have argued that his celebrity can be confused for sponsorship, which is regulated under the Lanham Act.[32] Nevertheless, the average American seems to be precluded from this IP protection strategy.

Without McConaughey’s celebrity, the distinctiveness requirement would not have been met.[33] People impute qualities and secondary meanings to celebrities.[34] However, the distinctiveness test is not a subjective one. The Second Circuit clarified the First Amendment concerns of allowing such subjective interpretations in Rogers v. Grimaldi, holding, “courts delineating the right of publicity, more frequently than in applying the Lanham Act, have recognized the need to limit the right to accommodate First Amendment concerns.”[35] Using a celebrity’s likeness is protected expression as long as its conducive to a work’s overall expression.[36] McConaughey’s trademark is at risk of violating the Rogers First Amendment protection,[37] which also brings forth the limitations ordinary citizens may have to grapple with in trying to protect their biometric data.

Ordinary citizens may have to stick to privacy laws, although their data is being used for commercial purposes.[38] The current legal landscape falls short, leaving them in a vulnerable position. State statutes offer some protection, but they are fragmented, unevenly enforced, and often reactive rather than preventative.[39] Meanwhile, public figures can invoke the right of publicity to assert control over their likeness or expand their rights through other IP,[40] highlighting a structural inequity in how the law treats identity and biometric data.[41] As courts struggle to reconcile privacy, IP, and commercial rights, it becomes clear that stand-alone doctrines cannot fully safeguard the personal and proprietary dimensions of data collection.[42]

Nick Cipriani is a Third Year Law Student at the Benjamin N. Cardozo School of Law and a Staff Editor at the Cardozo Arts & Entertainment Law Journal. Nick is interested in the intersections of media, privacy, tech, startup, and commercial laws. Nick is also the current president of Cardozo’s Intellectual Property Law Society and is presently interning at Cowan, DeBaets, Abrahams & Sheppard LLP.

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[1] Trade-Mark Cases, 100 U.S. 82 (1879); See Joel Mokyr, The Second Industrial Revolution, 1870-1914 (Aug. 1998), https://faculty.wcas.northwestern.edu/jmokyr/castronovo.pdf [https://perma.cc/R55R-7BCC ].

[2] See Matthew Michihara, Microprocessors: The Silicon Revolution, Illumin Magazine(May 2, 2008), https://illumin.usc.edu/microprocessors-the-silicon-revolution/ [https://perma.cc/QDU8-6H7W]; see also Paul Markillie, A Third Industrial Revolution: Special Report: Manufacturing and Innovation, The Economist (Apr. 21, 2012) https://www.economist.com/leaders/2012/04/21/the-third-industrial-revolution.

[3] Grand View Research, Biometric Technology Market 2023-2030, Grand View Research, https://www.grandviewresearch.com/industry-analysis/biometrics-industry [https://perma.cc/V2W4-Y8PJ] .

[4] Ernie Dainow, Understanding Computers, Smartphones and the Internet (Self-published, 2016).

[5] See The New World of Apps, American Psychological Association Services, Inc. (Dec. 1, 2020), https://www.apaservices.org/practice/business/technology/new-world-apps [https://perma.cc/4LCM-77QR].

[6] Fed. Trade Comm’n, How Websites and Apps Collect and Use Your Information (Sept. 2023), https://consumer.ftc.gov/articles/how-websites-apps-collect-use-your-information [https://perma.cc/HD7J-52M7].

[7] Sophia Andrews, A Victory in Tennessee: Governor Bill Lee Signs The ELVIS Act Into Law, Recording Academy (Mar. 26, 2024, at 12:53 ET), https://www.recordingacademy.com/advocacy/news/tennessee-victory-bill-lee-elvis-act [https://perma.cc/6VJH-5YVS].

[8] US State Privacy Legislation Tracker 2026, Int’l Ass’n of Privacy Professionals, https://assets.contentstack.io/v3/assets/bltd4dd5b2d705252bc/blt76d030a1054f612a/us_state_privacy_legislation_tracker.pdf (last visited Feb. 9, 2026).

[9] Data Protection Laws in the United States, DLA Piper, https://www.dlapiperdataprotection.com/?c=US [https://perma.cc/XAY4-Y2V5] (last visited Feb. 9, 2026); see also Biometrics Law Map, Jackson Lewis, https://www.jacksonlewis.com/services/biometrics-law-map [https://perma.cc/KE2C-3XHS] (last accessed Feb. 9, 2026).

[10] Saman Iftikhar , Cyberterrorism as a Global Threat: A Review on Repercussions and Countermeasures, PeerJ Comput. Sci., Jan. 15, , at 20, https://doi.org/10.7717/peerj-cs.1772 [https://perma.cc/5USH-39MP].

[11] Dr. Parineeta Goswami, Biometric Data as Intellectual Property: Redefining Ownership in the Digital Age, 3 NLUA J. Intell. Prop. Rts. 26, 41–42 (Apr. 8, 2025), https://ssrn.com/abstract=5209700.

[12] Biometric Information Privacy Act (BIPA), ACLU Illinois (Aug. 26, 2025), https://www.aclu-il.org/campaigns-initiatives/biometric-information-privacy-act-bipa/ [https://perma.cc/QEY9-GEUM].

[13] Tx. Bus. & Comm. Code Ann. § 503.001.

[14] Cal. Civ. Code § 1789.100 et seq (2018).

[15] John Wolak & William Martinez, That’s a Super-Sized Sack of Sliders: Illinois Supreme Court Finds White Castle Could Face up to $17 Billion in Damages, A.B.A (May 15, 2023), https://www.americanbar.org/groups/business_law/resources/business-law-today/2023-may/illinois-supreme-court-finds-white-castle-could-face-up-to-17b-in-damages/ [https://perma.cc/PT33-VD2Q].

[16] See supra note 12; see also supra note 13.

[17] See supra note 14.

[18] Id.

[19] See, generally, Laura Harding, Scarlett Johansson Joins Forces With Other Hollywood Stars to Accuse AI Firms of ‘Theft’, The Independent (Jan. 23, 2026, at 14:46 ET), https://www.the-independent.com/arts-entertainment/films/news/scarlett-johansson-anti-ai-campaign-b2906171.html [https://perma.cc/P6NC-HTKY]; see also Jake Kanter, Big AI Beware: Bounty Hunters Are Coming To Track Down Misuse Of Hollywood IP, Deadline (Feb. 11, 2026, at 5:00 PT), https://deadline.com/2026/02/lightbar-bounty-hunters-ai-disney-google-1236715436/ [https://perma.cc/MKV8-K6UU].

[20]Todd Spangler, Matthew McConaughey Trademarks “Alright, Alright, Alright!” and Other IP as Legal Protections Against ‘AI Misuse’, Variety (Jan. 14, 2026, at 11:39 PT), https://variety.com/2026/biz/news/matthew-mcconaughey-trademarks-alright-alright-alright-ai-misuse-1236631214/ [https://perma.cc/2X7Z-GUDN].

[21] Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 10–11 (2d. Cir. 1976); see also 15 U.S.C § 1052.

[22] Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 210 (2000), quoting Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992).

[23] Wal-Mart Stores, 529 U.S. at 211, quoting Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 851 (1982).

[24] U.S. Trademark Application Serial No. 98296825 (filed Dec. 4, 2023); U.S. Trademark Application Serial No. 98299749 (filed Dec. 5, 2023).

[25] U.S. Trademark Application Serial No. 98328056 (filed Dec. 22, 2023).

[26] See Serial No. 98296825, supra note 23.

[27] Id.

[28]  The mark consists of the actor Matthew McConaughey with dark hair wearing a white button-down shirt, a silver necklace and silver watch, standing outdoors on a porch with brown wooden slats and a silver metal fence with green foliage, tan sand and the blue sea and blue sky in the background, speaking and gesturing, Registration No. 7,995,851.

[29] Spangler, supra note 13.

[30] See supra notes 14 –15.

[31] 15 U.S.C. § 1125(a)(1)(A).

[32] See Id.; see also Spangler, supra note 13.

[33] Rosalie Huijgen, Alright, Alright, Alright: Could McConaughey’s Sound Trademark Silence AI?, Novagraaf (Feb. 9, 2026), https://www.novagraaf.com/en/insights/could-mcconaughey-sound-trademark-silence-ai/ [https://perma.cc/VJN4-XDR7].

[34] Alfred Archer & Catherine Robb, Being a Celebrity: Alienation, Integrity, Uncanny, 9 J. Am. Phil. Ass’n 597, 601-02 (Nov. 3, 2022).

[35] Rogers v. Grimaldi, 875 F.2d 994, 1004 (2d. Cir. 1989).

[36] Id.

[37] Id.

[38] Federal Trade Comm’n, supra note 6.

[39] See supra note 8.

[40] See supra note 12.

[41] See supra note 11.

[42] Id.