As Introduced 1
122nd General Assembly 4
Regular Session S. B. No. 54 5
1997-1998 6
SENATORS CARNES-LATTA-McLIN-MUMPER 8
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A B I L L
To enact sections 2741.01, 2741.02, 2741.03, 12
2741.04, 2741.05, 2741.06, 2741.07, 2741.08, and 13
2741.09 of the Revised Code to create a right of 14
publicity in an individual's "persona," to
declare that the right of publicity is a property 15
right, to specify that the right of publicity is 16
transferable and descendible, to create a cause 17
of action for the unauthorized commercial use of 18
an individual's persona, and to provide a
four-year statute of limitations for bringing an 19
action of that nature. 20
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 2741.01, 2741.02, 2741.03, 24
2741.04, 2741.05, 2741.06, 2741.07, 2741.08, and 2741.09 of the 25
Revised Code be enacted to read as follows: 26
Sec. 2741.01. AS USED IN THIS CHAPTER: 28
(A) "PERSONA" MEANS A LIVING OR DECEASED INDIVIDUAL'S 31
NAME, VOICE, SIGNATURE, PHOTOGRAPH, IMAGE, LIKENESS, DISTINCTIVE 32
APPEARANCE, GESTURES, OR MANNERISMS. 33
(B) "COMMERCIAL PURPOSE" MEANS THE USE OF AN ASPECT OF AN 36
INDIVIDUAL'S PERSONA IN ANY OF THE FOLLOWING MANNERS: 37
(1) ON OR IN CONNECTION WITH A PRODUCT, MERCHANDISE, 39
GOODS, SERVICES, OR COMMERCIAL ACTIVITIES; 40
(2) FOR ADVERTISING OR SOLICITING THE PURCHASE OF 42
PRODUCTS, MERCHANDISE, GOODS, OR SERVICES OR OTHER COMMERCIAL 43
ACTIVITIES; 44
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(3) FOR THE PURPOSE OF FUNDRAISING. 46
(C) "NAME" MEANS THE ACTUAL, ASSUMED, OR CLEARLY 49
IDENTIFIABLE NAME OF A LIVING OR DECEASED INDIVIDUAL THAT IS 50
INTENDED TO IDENTIFY THE INDIVIDUAL. 51
(D) "NEWS REPORTING OR ENTERTAINMENT MEDIUM" MEANS A 54
MEDIUM THAT PUBLISHES, BROADCASTS, OR DISSEMINATES ADVERTISING OR 55
REPORTING OF EVENTS OR TOPICS OF GENERAL OR PUBLIC INTEREST IN 56
THE NORMAL COURSE OF ITS BUSINESS THROUGH ANY OF THE FOLLOWING 57
MEANS:
(1) MAGAZINES; 59
(2) NEWSPAPERS; 61
(3) RADIO OR TELEVISION NETWORKS AND STATIONS; 63
(4) CABLE TELEVISION STATIONS; 65
(5) THE INTERNET, ON-LINE COMPUTER SERVICES, OR ANY 67
SIMILAR MEANS OF ELECTRONIC TRANSMISSION OF INFORMATION. 68
(E) "RIGHT OF PUBLICITY" MEANS THE PROPERTY RIGHT IN AN 71
INDIVIDUAL'S PERSONA TO USE THE INDIVIDUAL'S PERSONA FOR A 72
COMMERCIAL PURPOSE.
(F) "TRIER OF FACT" MEANS THE JURY OR, IN A NONJURY 75
ACTION, THE COURT.
Sec. 2741.02. (A) EXCEPT AS OTHERWISE PROVIDED IN 78
DIVISION (B) OF THIS SECTION, A PERSON SHALL NOT USE ANY ASPECT 80
OF AN INDIVIDUAL'S PERSONA FOR A COMMERCIAL PURPOSE DURING THE 81
INDIVIDUAL'S LIFETIME OR FOR A PERIOD OF ONE HUNDRED YEARS AFTER 82
THE DATE OF THE INDIVIDUAL'S DEATH. 83
(B) A PERSON MAY USE AN INDIVIDUAL'S PERSONA FOR A 86
COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME AND FOR A 87
PERIOD NOT TO EXCEED ONE HUNDRED YEARS AFTER THE DATE OF THE 88
INDIVIDUAL'S DEATH IF THE PERSON FIRST OBTAINS THE WRITTEN 89
CONSENT TO USE THE INDIVIDUAL'S PERSONA FROM A PERSON SPECIFIED 90
IN SECTION 2741.05 OF THE REVISED CODE. IF AN INDIVIDUAL WHOSE 92
PERSONA IS AT ISSUE HAS DIED, A PERSON SHALL OBTAIN CONSENT TO 93
USE THE INDIVIDUAL'S PERSONA FROM A PERSON SPECIFIED IN SECTION 94
2741.05 OF THE REVISED CODE WHO OWNS THE INDIVIDUAL'S RIGHT OF 97
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PUBLICITY.
A PERSON SHALL OBTAIN THE CONSENT TO USE AN INDIVIDUAL'S 99
PERSONA REGARDLESS OF WHETHER THE INDIVIDUAL USES, AUTHORIZES, 100
HAD USED, OR HAD AUTHORIZED THE USE OF THE INDIVIDUAL'S PERSONA 101
FOR A COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME. 102
SUBJECT TO THE TERMS OF ANY AGREEMENT BETWEEN A PERSON SPECIFIED 103
IN SECTION 2741.05 OF THE REVISED CODE AND A PERSON TO WHOM THAT 105
PERSON GRANTS CONSENT TO USE AN INDIVIDUAL'S RIGHT OF PUBLICITY, 106
A CONSENT OBTAINED BEFORE AN INDIVIDUAL DIES REMAINS VALID AFTER 107
THE INDIVIDUAL'S DEATH. 108
Sec. 2741.03. EXCEPT AS OTHERWISE PROVIDED IN SECTION 110
2741.09 OF THE REVISED CODE, THIS CHAPTER APPLIES ONLY TO THE 112
FOLLOWING:
(A) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 115
WHOSE DOMICILE OR RESIDENCE IS IN THIS STATE ON OR AFTER THE 116
EFFECTIVE DATE OF THIS SECTION; 117
(B) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 120
WHO DIED ON OR AFTER JANUARY 1, 1898, AND WHOSE DOMICILE OR 122
RESIDENCE BEFORE THE EFFECTIVE DATE OF THIS SECTION WAS IN THIS 123
STATE ON THE DATE OF THE INDIVIDUAL'S DEATH;
(C) AN ACT OR EVENT THAT INFRINGES UPON AN INDIVIDUAL'S 126
RIGHT OF PUBLICITY AND THAT OCCURS WITHIN THIS STATE ON OR AFTER 127
THE EFFECTIVE DATE OF THIS SECTION, REGARDLESS OF AN INDIVIDUAL'S 128
DOMICILE OR RESIDENCE. 129
Sec. 2741.04. THE RIGHT OF PUBLICITY IN AN INDIVIDUAL'S 131
PERSONA IS A PROPERTY RIGHT THAT IS FREELY TRANSFERABLE AND 132
DESCENDIBLE, IN WHOLE OR IN PART, BY ANY OF THE FOLLOWING MEANS: 134
(A) CONTRACT; 136
(B) LICENSE; 138
(C) GIFT; 140
(D) TRUST; 142
(E) WILL; 144
(F) OPERATION OF THE LAWS OF INTESTATE SUCCESSION 147
APPLICABLE TO THE STATE ADMINISTERING THE MAJORITY OF THE REAL 148
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AND PERSONAL PROPERTY OF AN INDIVIDUAL WHO DIED INTESTATE, 149
REGARDLESS OF WHETHER THAT STATE RECOGNIZES THE RIGHT OF 150
PUBLICITY AS A PROPERTY RIGHT. 151
Sec. 2741.05. (A) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED 154
IN AN AGREEMENT TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT 155
OF PUBLICITY, ONLY THE FOLLOWING PERSONS MAY GRANT CONSENT TO USE 156
AN INDIVIDUAL'S PERSONA FOR COMMERCIAL USE: 157
(1) A PERSON OR PERSONS, INCLUDING THE INDIVIDUAL WHOSE 159
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN MORE THAN 160
FIFTY PER CENT OF THE INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO 162
THE TERMS OF ANY OTHER LICENSES REGARDING THAT RIGHT OF
PUBLICITY; 163
(2) A PERSON, INCLUDING A LICENSEE OF THE INDIVIDUAL'S 165
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING TO 166
GRANT CONSENT BY A PERSON IN DIVISION (A)(1) OF THIS SECTION. 168
(B) A PERSON SPECIFIED IN DIVISION (A) OF THIS SECTION MAY 172
DO BOTH OF THE FOLLOWING:
(1) GRANT A PERSON CONSENT TO USE ALL OR PART OF AN 174
INDIVIDUAL'S RIGHT OF PUBLICITY; 175
(2) LIMIT, RESTRICT, OR PLACE CONDITIONS ON HOW A PERSON 177
TO WHOM CONSENT IS GRANTED PURSUANT TO THIS SECTION MAY USE AN 178
INDIVIDUAL'S RIGHT OF PUBLICITY. 179
Sec. 2741.06. (A) THE FOLLOWING PERSONS MAY BRING A CIVIL 182
ACTION TO ENFORCE THE RIGHTS SET FORTH IN THIS CHAPTER: 183
(1) A PERSON OR PERSONS, INCLUDING AN INDIVIDUAL WHOSE 185
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN ALL OF AN 186
INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO ANY LICENSES 187
REGARDING THAT RIGHT OF PUBLICITY; 188
(2) A PERSON, INCLUDING A LICENSEE OF AN INDIVIDUAL'S 190
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING BY THE 192
OWNER OR OWNERS OF AN INDIVIDUAL'S RIGHT OF PUBLICITY TO BRING A 193
CIVIL ACTION;
(3) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN AGREEMENT 195
TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT OF PUBLICITY AND 196
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SUBJECT TO DIVISION (C) OF THIS SECTION, A PERSON TO WHOM 198
OWNERSHIP OR ANY PORTION OF OWNERSHIP OF AN INDIVIDUAL'S RIGHT OF 199
PUBLICITY HAS BEEN TRANSFERRED. 200
(B) BEFORE BRINGING A CIVIL ACTION, A PERSON WHO OWNS LESS 203
THAN ALL OF AN INDIVIDUAL'S RIGHT OF PUBLICITY SHALL NOTIFY THE 204
INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT OF THE 205
PROPOSED ACTION, IF LIVING, BY REGULAR MAIL ADDRESSED TO THE LAST 206
KNOWN ADDRESS OF THAT INDIVIDUAL. THE PERSON ALSO SHALL NOTIFY 207
ANY PERSONS TO WHOM THE INDIVIDUAL'S RIGHT OF PUBLICITY HAS BEEN 208
TRANSFERRED OF THE PROPOSED CIVIL ACTION BY THE FOLLOWING MEANS: 209
(1) REGULAR MAIL ADDRESSED TO THE LAST KNOWN ADDRESS OF 211
EACH TRANSFEREE; 212
(2) IF THE ADDRESS OF THE TRANSFEREE IS NOT KNOWN, BY 214
PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY 215
IN WHICH THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 216
OF THE PROPOSED CIVIL ACTION RESIDES, OR, IN THE CASE OF A 217
DECEASED INDIVIDUAL, IN THE COUNTY IN WHICH THE INDIVIDUAL'S 218
ESTATE HAS BEEN OR WOULD HAVE BEEN ADMITTED TO PROBATE. 219
(C) THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 222
OF THE PROPOSED CIVIL ACTION, AND ANY PERSON TO WHOM OWNERSHIP OF 223
THAT RIGHT OF PUBLICITY HAS BEEN TRANSFERRED, MAY OBJECT TO THE 224
PROPOSED CIVIL ACTION WITHIN TWENTY DAYS FROM THE DATE OF THE 225
MAILING OF THE NOTICE REFERRED TO IN DIVISION (B) OF THIS SECTION 227
OR SIXTY DAYS FROM THE DATE OF PUBLICATION REFERRED TO IN THAT 228
DIVISION BY GIVING WRITTEN NOTICE OF THE OBJECTION TO THE PERSON 229
PROPOSING THE CIVIL ACTION. IF THE INDIVIDUAL OR TRANSFEREE DOES 230
NOT OBJECT TO THE CIVIL ACTION WITHIN THE TIME PERIOD SPECIFIED 231
IN THIS DIVISION, THE INDIVIDUAL OR TRANSFEREE IS FOREVER BARRED 232
FROM OBJECTING TO THAT ACTION.
A PERSON MAY NOT BRING A CIVIL ACTION IF A PERSON OR 234
PERSONS, INCLUDING THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE 236
SUBJECT OF THE PROPOSED CIVIL ACTION, WHO COLLECTIVELY OWN MORE 237
THAN FIFTY PER CENT OF THE INDIVIDUAL'S RIGHT OF PUBLICITY OBJECT 238
TO THE PROPOSED CIVIL ACTION.
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(D) A PERSON, OTHER THAN A LICENSEE OF AN INDIVIDUAL'S 241
RIGHT OF PUBLICITY, WHO OWNS LESS THAN ALL OF AN INDIVIDUAL'S 242
RIGHT OF PUBLICITY AND WHO BRINGS A CIVIL ACTION UNDER THIS 243
CHAPTER SHALL ACCOUNT TO ANY OTHER PERSON OWNING AN INTEREST IN 244
THAT RIGHT OF PUBLICITY TO THE EXTENT OF THE OTHER PERSON'S 245
INTEREST WITH RESPECT TO ANY NET RECOVERY IN A CIVIL ACTION LESS 246
THE PERSON'S COSTS OF COLLECTION AND REASONABLE ATTORNEY'S FEES. 247
Sec. 2741.07. (A) A PERSON WHO VIOLATES SECTION 2741.02 250
OR 2741.05 OF THE REVISED CODE IS LIABLE IN A CIVIL ACTION TO THE 252
PERSON INJURED BY THE VIOLATION FOR BOTH OF THE FOLLOWING: 253
(1) MONETARY DAMAGES IN THE AMOUNT OF TEN THOUSAND DOLLARS 256
OR ACTUAL DAMAGES, WHICHEVER IS GREATER. THE TRIER OF FACT SHALL 257
INCLUDE ANY PROFITS A PERSON DERIVED FROM THE UNAUTHORIZED 258
COMMERCIAL USE OF AN INDIVIDUAL'S PERSONA IN CALCULATING THE 259
AWARD OF ACTUAL DAMAGES UNDER THIS DIVISION. 260
(2) AT THE ELECTION OF THE INJURED PERSON, TREBLE DAMAGES 262
OR, IF APPLICABLE PURSUANT TO SECTION 2315.21 OF THE REVISED 265
CODE, PUNITIVE OR EXEMPLARY DAMAGES. 266
(B) EACH PARTY HAS THE RIGHT TO A JURY TRIAL OF THE 269
ACTION. TO ASSERT THE RIGHT, A PARTY SHALL DEMAND A JURY TRIAL 270
IN THE MANNER PRESCRIBED IN THE RULES OF CIVIL PROCEDURE. IF A 273
PARTY DEMANDS A JURY TRIAL IN THAT MANNER, THE ACTION SHALL BE 274
TRIED TO A JURY. 275
(C) AN ACTION UNDER THIS SECTION SHALL BE BROUGHT WITHIN 278
FOUR YEARS AFTER A PERSON SPECIFIED IN SECTION 2741.05 OF THE 280
REVISED CODE HAS ACTUAL KNOWLEDGE OF A VIOLATION OF THIS CHAPTER. 281
(D) A COURT MAY DO ANY OF THE FOLLOWING: 284
(1) AWARD THE PREVAILING PARTY REASONABLE ATTORNEY'S FEES, 287
COURT COSTS, AND REASONABLE EXPENSES ASSOCIATED WITH THE CIVIL 288
ACTION;
(2) ORDER TEMPORARY OR PERMANENT INJUNCTIVE RELIEF; 291
(3) ORDER THE IMPOUNDMENT, ON TERMS THE COURT DEEMS 293
REASONABLE, OF BOTH OF THE FOLLOWING DURING THE PENDENCY OF A 294
CIVIL ACTION UNDER THIS CHAPTER: 295
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(a) PRODUCTS, MERCHANDISE, GOODS, OR OTHER MATERIALS 298
ALLEGED TO HAVE BEEN MADE OR USED IN VIOLATION OF SECTION 2741.02 299
OF THE REVISED CODE; 301
(b) PLATES, MOLDS, MATRICES, MASTERS, TAPES, NEGATIVES, 304
DIGITAL RECORDINGS, ELECTRONIC MEDIA, OR OTHER ITEMS FROM WHICH 305
PRODUCTS, MERCHANDISE, GOODS, OR OTHER MATERIALS MAY BE 306
MANUFACTURED OR REPRODUCED.
(E) AS PART OF A FINAL JUDGMENT, A COURT MAY ORDER THE 309
DESTRUCTION OR OTHER REASONABLE DISPOSITION OF ITEMS DESCRIBED IN 310
DIVISION (D)(3) OF THIS SECTION. 311
Sec. 2741.08. THE REMEDIES PROVIDED FOR IN THIS CHAPTER 313
ARE IN ADDITION TO ANY OTHER REMEDIES PROVIDED FOR BY STATE OR 314
FEDERAL STATUTE OR COMMON LAW. 315
Sec. 2741.09. (A) THIS CHAPTER DOES NOT APPLY TO ANY OF 318
THE FOLLOWING:
(1) THE USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN ANY 321
OF THE FOLLOWING MEDIA IF THAT USE DOES NOT CONVEY OR REASONABLY 322
SUGGEST THAT THE INDIVIDUAL ENDORSES THE WORK, COMPOSITION, OR 323
PROGRAM INVOLVED:
(a) THE INTERNET, ON-LINE COMPUTER SERVICES, AND SIMILAR 326
MEANS OF ELECTRONIC TRANSMISSION OF INFORMATION, LITERARY WORKS, 327
THEATRICAL WORKS, MUSICAL COMPOSITIONS, FILM, VIDEOTAPE, 328
PHOTOGRAPHS, RADIO, OR TELEVISION PROGRAMS TO THE EXTENT THAT THE 329
USAGE OF AN ASPECT OF THE INDIVIDUAL'S PERSONA IS PERMITTED UNDER 330
THE OHIO CONSTITUTION OR UNITED STATES CONSTITUTION; 334
(b) MATERIAL THAT HAS POLITICAL OR NEWSWORTHY VALUE; 337
(c) ORIGINAL WORKS OF FINE ART. 339
(2) THE USE OF AN INDIVIDUAL'S PERSONA IN PROMOTIONAL 341
MATERIALS, COMMERCIAL ANNOUNCEMENTS, OR ADVERTISEMENTS FOR A NEWS 343
REPORTING OR ENTERTAINMENT MEDIUM THAT SATISFIES ALL OF THE
FOLLOWING CRITERIA: 344
(a) THE PROMOTIONAL MATERIALS, COMMERCIAL ANNOUNCEMENTS, 347
OR ADVERTISEMENTS USE ALL OR PART OF A PAST EDITION OF THE 348
MEDIUM'S OWN BROADCAST OR PUBLICATION CONTAINING ASPECTS OF THE 349
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INDIVIDUAL'S PERSONA.
(b) THE PROMOTIONAL MATERIALS, COMMERCIAL ANNOUNCEMENTS, 352
OR ADVERTISEMENTS DO NOT CONVEY OR REASONABLY SUGGEST THAT THE 353
INDIVIDUAL ENDORSES THE NEWS REPORTING OR ENTERTAINMENT MEDIUM. 354
(c) THE PROMOTIONAL MATERIALS, COMMERCIAL ANNOUNCEMENTS, 357
OR ADVERTISEMENTS PROMOTE, ANNOUNCE, OR ADVERTISE AN ASPECT OF 358
THE INDIVIDUAL'S PERSONA THAT IS EXCLUDED FROM THIS CHAPTER UNDER 359
DIVISION (A) OF THIS SECTION. 360
(3) THE USE OF AN INDIVIDUAL'S NAME TO TRUTHFULLY IDENTIFY 363
THE INDIVIDUAL AS THE AUTHOR OF A WRITTEN WORK OR THE PERFORMER 364
OF A RECORDED PERFORMANCE UNDER CIRCUMSTANCES IN WHICH THE 365
WRITTEN WORK OR THE RECORDED PERFORMANCE IS OTHERWISE LAWFULLY 366
REPRODUCED, EXHIBITED, OR BROADCAST.
(4) THE USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 368
CONNECTION WITH THE BROADCAST OR REPORTING OF AN EVENT OR TOPIC 369
OF GENERAL OR PUBLIC INTEREST. 370
(B) A PERSON WHO HOLDS A COPYRIGHT AND WHO AUTHORIZES A 373
PERSON TO REPRODUCE, PERFORM, DISPLAY, PREPARE DERIVATIVE WORKS 374
OF, OR DISTRIBUTE COPIES OF A COPYRIGHTED WORK DOES NOT CONVEY TO 375
THAT PERSON THE RIGHT OF PUBLICITY IN THE PERSONA OF AN 376
INDIVIDUAL DEPICTED IN THAT WORK UNLESS THE PERSON WHO HOLDS THE 377
COPYRIGHT HAS OBTAINED THE RIGHT OF PUBLICITY OR CONSENT TO USE 378
THE RIGHT OF PUBLICITY FROM A PERSON SPECIFIED IN SECTION 2741.05 379
OF THE REVISED CODE. 380
(C) THIS CHAPTER DOES NOT AFFECT RIGHTS OR PRIVILEGES 383
RECOGNIZED UNDER THE OHIO CONSTITUTION OR UNITED STATES 388
CONSTITUTION WITH RESPECT TO A NEWS REPORTING OR ENTERTAINMENT 389
MEDIUM.
Section 2. The enactment of Chapter 2741. of the Revised 391
Code by this act does not abrogate the common law relating to 392
privacy as recognized by the Ohio courts in Zacchini v. 393
Scripps-Howard Broadcasting Co. (1978), 54 Ohio St.2d 286; 394
Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 396
129, rev'd on other grounds, (1977) 433 U.S. 562; Vinci v. 397
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American Can Co. (Cuyahoga Cty. 1990), 69 Ohio App.3d 727; and 398
Bajpayee v. Rothermich (Franklin Cty. 1977), 53 Ohio App.2d 117. 399