A recent New York Supreme Court decision offers a stark warning to creator economy businesses: even a $145 million sale may not secure exclusive rights to a personal brand, i.e., a person’s name, image, and likeness (NIL). The high-profile case of golf legend Jack Nicklaus demonstrates what attorneys Scott Hervey and Jessica Marlow call “a timely lesson both for influencers and for those that are buying or financing those businesses” in today’s creator economy, an industry that is witnessing increasing business.
The Case
In 2007, Nicklaus Companies LLC, formed by real estate magnate Howard Milstein, purchased certain assets from GBI Investors, a company owned and controlled by Nicklaus, for $145 million. The acquisition included a large portfolio of trademarks and applications related to Nicklaus’s name, signature, and “Golden Bear” nickname across the United States and 50 other countries—more than 600 registrations in total.
The deal also encompassed the exclusive right to golf course design services and various marketing, promotional, and branding businesses that used Nicklaus’s name, image, and likeness. Following the transaction, Nicklaus and GBI became members of Nicklaus Companies, with Nicklaus serving as a manager.
In 2022, after retiring from day-to-day involvement with Nicklaus Companies, Nicklaus began pursuing deals for the use of his name, likeness, and trademarks outside of Nicklaus Companies. This included personal endorsements such as promoting a European Tour golf tournament and allowing the tournament to use certain Nicklaus intellectual property.
Nicklaus Companies sued, alleging breach of contract and seeking to prevent him from competing and using his name. The company argued that the 2007 transaction had transferred all rights related to “Nicholas’s persona, endorsements, other commercial rights, publicity rights, and intellectual property rights related to his identity and history as one of the most recognizable public figures in golf.”
The New York Supreme Court ultimately granted Nicklaus’s motion for summary judgment, dismissing all claims brought by Nicklaus Companies. The court’s analysis revealed that the purchase and sale agreement was between Nicklaus Companies and GBI—not Nicklaus himself. Therefore, any rights transferred were limited to what GBI legally possessed.
The court concluded that Nicklaus Companies failed to demonstrate that GBI had the authority to grant exclusive rights to Nicklaus’s name, image, and likeness that would bind him personally. In the ruling, the judge noted, “The exploitive value of his name as an endorser of products and the like is where the line is drawn.” This decision allows Nicklaus to use his name, image, and likeness in future business ventures.
Key Takeaways for Creator Economy Businesses
As Hervey and Marlow note, the court decision reveals several critical considerations for personal brand transactions:
Corporate Structure Matters: Nicklaus structured the deal through his wholly-owned entity (GBI), creating a layer of separation between himself and the sold assets. This “gave him this layer of separation between himself and the assets that were sold.”
Rights Ownership Verification: Nicklaus Companies failed to verify whether GBI actually owned the personal publicity rights it purported to sell. The attorneys describe this as “really bad due diligence where a company is based on an individual’s brand.”
Personal Assignments Required: Rights of publicity are inherently personal, requiring the individual to personally transfer those rights in writing. “Rights of publicity and privacy are inherently personal, so if an individual doesn’t personally transfer those rights in writing, then any purported ownership by a third party is vulnerable to challenge.”
Non-Compete Limitations: Once Nicklaus’s 13-year non-compete expired, little prevented him from re-entering the marketplace using his personal brand. As legal analysis shows, “The only thing stopping Jack Nicklaus from going back into business under his own name was a 13-year non-compete.”
Contract Ambiguity: Vague language in the purchase agreement about exclusivity and the scope of IP rights transferred ultimately favored Nicklaus. “Without clear language about exclusivity, courts will not infer that a person has given up the rights to exploit their identity.”
Preventative Measures for Investors
Hervey and Marlow offer several protective strategies for those investing in personal brand-driven businesses:
Secure Direct Assignments: Require the individual to personally sign rights assignment agreements explicitly transferring name, image, and likeness rights.
Implement Personal Services Agreements: Create performance obligations that require the individual to act exclusively through the company for appearances and endorsements.
Strengthen Non-Compete Terms: Negotiate appropriate non-compete terms with incentives for continued exclusivity beyond the initial period.
Verify IP Ownership: Ensure all intellectual property—including trademarks, domain names, and social media handles—resides within the company being purchased.
A recent New York Supreme Court decision offers a stark warning to creator economy businesses: even a $145 million sale may not secure exclusive rights to a personal brand, i.e., a person’s name, image, and likeness (NIL). The high-profile case of golf legend Jack Nicklaus demonstrates what attorneys Scott Hervey and Jessica Marlow call “a timely lesson both for influencers and for those that are buying or financing those businesses” in today’s creator economy, an industry that is witnessing increasing business.
The Case
In 2007, Nicklaus Companies LLC, formed by real estate magnate Howard Milstein, purchased certain assets from GBI Investors, a company owned and controlled by Nicklaus, for $145 million. The acquisition included a large portfolio of trademarks and applications related to Nicklaus’s name, signature, and “Golden Bear” nickname across the United States and 50 other countries—more than 600 registrations in total.
The deal also encompassed the exclusive right to golf course design services and various marketing, promotional, and branding businesses that used Nicklaus’s name, image, and likeness. Following the transaction, Nicklaus and GBI became members of Nicklaus Companies, with Nicklaus serving as a manager.
In 2022, after retiring from day-to-day involvement with Nicklaus Companies, Nicklaus began pursuing deals for the use of his name, likeness, and trademarks outside of Nicklaus Companies. This included personal endorsements such as promoting a European Tour golf tournament and allowing the tournament to use certain Nicklaus intellectual property.
Nicklaus Companies sued, alleging breach of contract and seeking to prevent him from competing and using his name. The company argued that the 2007 transaction had transferred all rights related to “Nicholas’s persona, endorsements, other commercial rights, publicity rights, and intellectual property rights related to his identity and history as one of the most recognizable public figures in golf.”
The New York Supreme Court ultimately granted Nicklaus’s motion for summary judgment, dismissing all claims brought by Nicklaus Companies. The court’s analysis revealed that the purchase and sale agreement was between Nicklaus Companies and GBI—not Nicklaus himself. Therefore, any rights transferred were limited to what GBI legally possessed.
The court concluded that Nicklaus Companies failed to demonstrate that GBI had the authority to grant exclusive rights to Nicklaus’s name, image, and likeness that would bind him personally. In the ruling, the judge noted, “The exploitive value of his name as an endorser of products and the like is where the line is drawn.” This decision allows Nicklaus to use his name, image, and likeness in future business ventures.
Key Takeaways for Creator Economy Businesses
As Hervey and Marlow note, the court decision reveals several critical considerations for personal brand transactions:
Corporate Structure Matters: Nicklaus structured the deal through his wholly-owned entity (GBI), creating a layer of separation between himself and the sold assets. This “gave him this layer of separation between himself and the assets that were sold.”
Rights Ownership Verification: Nicklaus Companies failed to verify whether GBI actually owned the personal publicity rights it purported to sell. The attorneys describe this as “really bad due diligence where a company is based on an individual’s brand.”
Personal Assignments Required: Rights of publicity are inherently personal, requiring the individual to personally transfer those rights in writing. “Rights of publicity and privacy are inherently personal, so if an individual doesn’t personally transfer those rights in writing, then any purported ownership by a third party is vulnerable to challenge.”
Non-Compete Limitations: Once Nicklaus’s 13-year non-compete expired, little prevented him from re-entering the marketplace using his personal brand. As legal analysis shows, “The only thing stopping Jack Nicklaus from going back into business under his own name was a 13-year non-compete.”
Contract Ambiguity: Vague language in the purchase agreement about exclusivity and the scope of IP rights transferred ultimately favored Nicklaus. “Without clear language about exclusivity, courts will not infer that a person has given up the rights to exploit their identity.”
Preventative Measures for Investors
Hervey and Marlow offer several protective strategies for those investing in personal brand-driven businesses:
Secure Direct Assignments: Require the individual to personally sign rights assignment agreements explicitly transferring name, image, and likeness rights.
Implement Personal Services Agreements: Create performance obligations that require the individual to act exclusively through the company for appearances and endorsements.
Strengthen Non-Compete Terms: Negotiate appropriate non-compete terms with incentives for continued exclusivity beyond the initial period.
Verify IP Ownership: Ensure all intellectual property—including trademarks, domain names, and social media handles—resides within the company being purchased.