As Passed by the Senate 1
123rd General Assembly 4
Regular Session Sub. S. B. No. 54 5
1999-2000 6
SENATORS CARNES-LATTA-McLIN-MUMPER-HERINGTON-SHOEMAKER-FINAN- 8
ARMBRUSTER-GARDNER-SPADA-WACHTMANN-DRAKE-PRENTISS 9
_________________________________________________________________ 11
A B I L L
To enact sections 2741.01, 2741.02, 2741.03, 13
2741.04, 2741.05, 2741.06, 2741.07, 2741.08, and 14
2741.09 of the Revised Code to create a right of 15
publicity in an individual's "persona," to
declare that the right of publicity is a property 16
right, to specify that the right of publicity is 17
transferable and descendible, to create a cause 18
of action for the unauthorized commercial use of 19
an individual's persona, and to provide a
four-year statute of limitations for bringing an 20
action of that nature. 21
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 23
Section 1. That sections 2741.01, 2741.02, 2741.03, 25
2741.04, 2741.05, 2741.06, 2741.07, 2741.08, and 2741.09 of the 26
Revised Code be enacted to read as follows: 27
Sec. 2741.01. AS USED IN THIS CHAPTER: 29
(A) "PERSONA" MEANS AN INDIVIDUAL'S NAME, VOICE, 31
SIGNATURE, PHOTOGRAPH, IMAGE, LIKENESS, OR DISTINCTIVE 32
APPEARANCE, IF ANY OF THESE ASPECTS HAVE COMMERCIAL VALUE. 33
(B) "COMMERCIAL PURPOSE" MEANS THE USE OF OR REFERENCE TO 36
AN ASPECT OF AN INDIVIDUAL'S PERSONA IN ANY OF THE FOLLOWING 37
MANNERS:
(1) ON OR IN CONNECTION WITH A PLACE, PRODUCT, 39
MERCHANDISE, GOODS, SERVICES, OR OTHER COMMERCIAL ACTIVITIES NOT 40
EXPRESSLY EXEMPTED UNDER THIS CHAPTER; 41
2
(2) FOR ADVERTISING OR SOLICITING THE PURCHASE OF 43
PRODUCTS, MERCHANDISE, GOODS, SERVICES, OR OTHER COMMERCIAL 44
ACTIVITIES NOT EXPRESSLY EXEMPTED UNDER THIS CHAPTER; 45
(3) FOR THE PURPOSE OF PROMOTING TRAVEL TO A PLACE; 47
(4) FOR THE PURPOSE OF FUNDRAISING. 49
(C) "NAME" MEANS THE ACTUAL, ASSUMED, OR CLEARLY 52
IDENTIFIABLE NAME OF OR REFERENCE TO A LIVING OR DECEASED 53
INDIVIDUAL THAT IDENTIFIES THE INDIVIDUAL.
(D) "RIGHT OF PUBLICITY" MEANS THE PROPERTY RIGHT IN AN 56
INDIVIDUAL'S PERSONA TO USE THE INDIVIDUAL'S PERSONA FOR A 57
COMMERCIAL PURPOSE.
(E) "TRIER OF FACT" MEANS THE JURY OR, IN A NONJURY 60
ACTION, THE COURT.
(F) "WRITTEN CONSENT" INCLUDES WRITTEN, ELECTRONIC, 62
DIGITAL, OR ANY OTHER VERIFIABLE MEANS OF AUTHORIZATION. 63
Sec. 2741.02. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS 66
SECTION, A PERSON SHALL NOT USE ANY ASPECT OF AN INDIVIDUAL'S 67
PERSONA FOR A COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME 68
OR FOR A PERIOD OF SEVENTY-FIVE YEARS AFTER THE DATE OF THE 69
INDIVIDUAL'S DEATH. 70
(B) A PERSON MAY USE AN INDIVIDUAL'S PERSONA FOR A 73
COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME IF THE PERSON 74
FIRST OBTAINS THE WRITTEN CONSENT TO USE THE INDIVIDUAL'S PERSONA 76
FROM A PERSON SPECIFIED IN SECTION 2741.05 OF THE REVISED CODE. 78
IF AN INDIVIDUAL WHOSE PERSONA IS AT ISSUE HAS DIED, A PERSON MAY 79
USE THE INDIVIDUAL'S PERSONA FOR A COMMERCIAL PURPOSE IF EITHER 80
OF THE FOLLOWING APPLIES:
(1) THE PERSON FIRST OBTAINS THE WRITTEN CONSENT TO USE 83
THE INDIVIDUAL'S PERSONA FROM A PERSON SPECIFIED IN SECTION
2741.05 OF THE REVISED CODE WHO OWNS THE INDIVIDUAL'S RIGHT OF 86
PUBLICITY.
(2) THE NAME OF THE INDIVIDUAL WHOSE PERSONA IS USED WAS 88
THE NAME OF A BUSINESS ENTITY OR A TRADE NAME AT THE TIME OF THE 89
INDIVIDUAL'S DEATH.
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(C) SUBJECT TO THE TERMS OF ANY AGREEMENT BETWEEN A PERSON 91
SPECIFIED IN SECTION 2741.05 OF THE REVISED CODE AND A PERSON TO 94
WHOM THAT PERSON GRANTS CONSENT TO USE AN INDIVIDUAL'S RIGHT OF 95
PUBLICITY, A CONSENT OBTAINED BEFORE THE DEATH OF AN INDIVIDUAL 96
WHOSE PERSONA IS AT ISSUE REMAINS VALID AFTER THE INDIVIDUAL'S 97
DEATH.
(D) FOR PURPOSES OF THIS SECTION: 99
(1) A USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 101
CONNECTION WITH ANY NEWS, PUBLIC AFFAIRS, SPORTS BROADCAST, OR 102
ACCOUNT DOES NOT CONSTITUTE A USE FOR WHICH CONSENT IS REQUIRED 103
UNDER DIVISION (A) OF THIS SECTION. 104
(2) A USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 106
CONNECTION WITH ANY POLITICAL CAMPAIGN AND IN COMPLIANCE WITH 107
TITLE XXXIX OF THE REVISED CODE DOES NOT CONSTITUTE A USE FOR 109
WHICH CONSENT IS REQUIRED UNDER DIVISION (A) OF THIS SECTION.
(E) THE OWNERS OR EMPLOYEES OF ANY MEDIUM USED FOR 111
ADVERTISING, INCLUDING BUT NOT LIMITED TO, A NEWSPAPER, MAGAZINE, 112
RADIO OR TELEVISION NETWORK OR STATION, CABLE TELEVISION SYSTEM, 114
BILLBOARD, TRANSIT AD, AND GLOBAL COMMUNICATIONS NETWORK, BY WHOM 115
ANY ADVERTISEMENT OR SOLICITATION IN VIOLATION OF THIS SECTION IS 116
PUBLISHED OR DISSEMINATED ARE NOT LIABLE UNDER THIS SECTION 117
UNLESS IT IS ESTABLISHED THAT THOSE OWNERS OR EMPLOYEES HAD 118
KNOWLEDGE OF, OR ACTED IN RECKLESS DISREGARD BY FAILING TO 119
ACQUIRE KNOWLEDGE OF, THE UNAUTHORIZED USE OF THE PERSONA AS 120
PROHIBITED BY THIS SECTION.
Sec. 2741.03. EXCEPT AS OTHERWISE PROVIDED IN SECTION 122
2741.09 OF THE REVISED CODE, THIS CHAPTER APPLIES ONLY TO THE 124
FOLLOWING:
(A) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 127
WHOSE DOMICILE OR RESIDENCE IS IN THIS STATE ON OR AFTER THE 128
EFFECTIVE DATE OF THIS SECTION; 129
(B) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 132
WHO DIED ON OR AFTER JANUARY 1, 1998, AND WHOSE DOMICILE OR 133
RESIDENCE WAS IN THIS STATE ON THE DATE OF THE INDIVIDUAL'S 134
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DEATH.
Sec. 2741.04. THE RIGHT OF PUBLICITY IN AN INDIVIDUAL'S 136
PERSONA IS FREELY TRANSFERABLE AND DESCENDIBLE, IN WHOLE OR IN 138
PART, BY ANY OF THE FOLLOWING MEANS: 139
(A) CONTRACT; 141
(B) LICENSE; 143
(C) GIFT; 145
(D) TRUST; 147
(E) WILL; 149
(F) OPERATION OF THE LAWS OF INTESTATE SUCCESSION 152
APPLICABLE TO THE STATE ADMINISTERING THE MAJORITY OF THE REAL 153
AND PERSONAL PROPERTY OF AN INDIVIDUAL WHO DIED INTESTATE, 154
REGARDLESS OF WHETHER THAT STATE RECOGNIZES THE RIGHT OF 155
PUBLICITY AS A PROPERTY RIGHT. 156
Sec. 2741.05. (A) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED 159
IN AN AGREEMENT TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT 160
OF PUBLICITY, ONLY THE FOLLOWING PERSONS MAY GRANT CONSENT TO USE 161
AN INDIVIDUAL'S PERSONA FOR A COMMERCIAL PURPOSE: 162
(1) A PERSON OR PERSONS, INCLUDING THE INDIVIDUAL WHOSE 164
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN MORE THAN 165
FIFTY PER CENT OF THE INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO 167
THE TERMS OF ANY OTHER LICENSES REGARDING THAT RIGHT OF
PUBLICITY; 168
(2) A PERSON, INCLUDING A LICENSEE OF THE INDIVIDUAL'S 170
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING TO 171
GRANT CONSENT BY A PERSON OR PERSONS SPECIFIED IN DIVISION (A)(1) 173
OF THIS SECTION.
(B) A PERSON OR PERSONS SPECIFIED IN DIVISION (A) OF THIS 176
SECTION MAY DO ONE OR BOTH OF THE FOLLOWING: 177
(1) GRANT A PERSON OR PERSONS CONSENT TO USE ALL OR PART 179
OF AN INDIVIDUAL'S RIGHT OF PUBLICITY FOR A COMMERCIAL PURPOSE; 180
(2) LIMIT, RESTRICT, OR PLACE CONDITIONS ON HOW A PERSON 182
OR PERSONS TO WHOM CONSENT IS GRANTED PURSUANT TO THIS SECTION 183
MAY USE AN INDIVIDUAL'S RIGHT OF PUBLICITY. 184
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Sec. 2741.06. (A) THE FOLLOWING PERSONS MAY BRING A CIVIL 187
ACTION TO ENFORCE THE RIGHTS SET FORTH IN THIS CHAPTER: 188
(1) A PERSON OR PERSONS, INCLUDING AN INDIVIDUAL WHOSE 190
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN ALL OF AN 191
INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO ANY LICENSES 192
REGARDING THAT RIGHT OF PUBLICITY; 193
(2) A PERSON, INCLUDING A LICENSEE OF AN INDIVIDUAL'S 195
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING BY THE 197
OWNER OR OWNERS OF AN INDIVIDUAL'S RIGHT OF PUBLICITY TO BRING A 198
CIVIL ACTION;
(3) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN AGREEMENT 200
TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT OF PUBLICITY AND 201
SUBJECT TO DIVISION (C) OF THIS SECTION, A PERSON TO WHOM 203
OWNERSHIP OR ANY PORTION OF OWNERSHIP OF AN INDIVIDUAL'S RIGHT OF 204
PUBLICITY HAS BEEN TRANSFERRED. 205
(B) BEFORE BRINGING A CIVIL ACTION UNDER THIS SECTION, A 208
PERSON WHO OWNS LESS THAN ALL OF AN INDIVIDUAL'S RIGHT OF 210
PUBLICITY SHALL NOTIFY THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS 211
THE SUBJECT OF THE PROPOSED ACTION, IF LIVING, BY REGULAR MAIL 212
ADDRESSED TO THE LAST KNOWN ADDRESS OF THAT INDIVIDUAL. THE 213
PERSON ALSO SHALL NOTIFY ANY PERSONS TO WHOM THE INDIVIDUAL'S 214
RIGHT OF PUBLICITY HAS BEEN TRANSFERRED OF THE PROPOSED CIVIL 215
ACTION BY THE FOLLOWING MEANS:
(1) REGULAR MAIL ADDRESSED TO THE LAST KNOWN ADDRESS OF 217
EACH TRANSFEREE; 218
(2) IF THE ADDRESS OF THE TRANSFEREE IS NOT KNOWN, 220
PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY 221
IN WHICH THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 222
OF THE PROPOSED CIVIL ACTION RESIDES, OR, IN THE CASE OF A 223
DECEASED INDIVIDUAL, IN THE COUNTY IN WHICH THE INDIVIDUAL'S 224
ESTATE HAS BEEN OR WOULD HAVE BEEN ADMITTED TO PROBATE. 225
(C) THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 228
OF THE PROPOSED CIVIL ACTION BROUGHT UNDER THIS SECTION, AND ANY 230
PERSON TO WHOM OWNERSHIP OF THAT RIGHT OF PUBLICITY HAS BEEN 231
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TRANSFERRED, MAY OBJECT TO THE PROPOSED CIVIL ACTION WITHIN
TWENTY DAYS FROM THE DATE OF THE MAILING OF THE NOTICE REFERRED 232
TO IN DIVISION (B) OF THIS SECTION OR SIXTY DAYS FROM THE DATE OF 234
PUBLICATION REFERRED TO IN THAT DIVISION BY GIVING WRITTEN NOTICE 235
OF THE OBJECTION TO THE PERSON PROPOSING THE CIVIL ACTION. IF 236
THE INDIVIDUAL OR TRANSFEREE DOES NOT OBJECT TO THE CIVIL ACTION 237
WITHIN THE TIME PERIOD SPECIFIED IN THIS DIVISION, THE INDIVIDUAL 238
OR TRANSFEREE IS FOREVER BARRED FROM OBJECTING TO THAT ACTION. 239
A PERSON MAY NOT BRING A CIVIL ACTION UNDER THIS SECTION IF 241
A PERSON OR PERSONS, INCLUDING THE INDIVIDUAL WHOSE RIGHT OF 242
PUBLICITY IS THE SUBJECT OF THE PROPOSED CIVIL ACTION, WHO 243
COLLECTIVELY OWN MORE THAN FIFTY PER CENT OF THE INDIVIDUAL'S 244
RIGHT OF PUBLICITY OBJECT TO THE PROPOSED CIVIL ACTION. 245
(D) A PERSON, OTHER THAN A LICENSEE OF AN INDIVIDUAL'S 248
RIGHT OF PUBLICITY, WHO OWNS LESS THAN ALL OF AN INDIVIDUAL'S 249
RIGHT OF PUBLICITY AND WHO BRINGS A CIVIL ACTION UNDER THIS 250
CHAPTER SHALL ACCOUNT TO ANY OTHER PERSON OWNING AN INTEREST IN 251
THAT RIGHT OF PUBLICITY TO THE EXTENT OF THE OTHER PERSON'S 252
INTEREST WITH RESPECT TO ANY NET RECOVERY IN A CIVIL ACTION LESS 253
THE PERSON'S COSTS OF COLLECTION AND REASONABLE ATTORNEY'S FEES. 254
Sec. 2741.07. (A)(1) A PERSON WHO VIOLATES SECTION 257
2741.02 OF THE REVISED CODE IS LIABLE IN A CIVIL ACTION TO THE 259
PERSON INJURED BY THE VIOLATION FOR THE FOLLOWING: 260
(a) ACTUAL DAMAGES, INCLUDING ANY PROFITS DERIVED FROM AND 262
ATTRIBUTABLE TO THE UNAUTHORIZED COMMERCIAL USE OF AN 263
INDIVIDUAL'S PERSONA AS DETERMINED UNDER DIVISION (A)(2) OF THIS 264
SECTION;
(b) AT THE ELECTION OF THE PLAINTIFF AND IN LIEU OF ACTUAL 267
DAMAGES, STATUTORY DAMAGES IN THE AMOUNT OF AT LEAST TWO THOUSAND 268
FIVE HUNDRED DOLLARS AND NOT MORE THAN TEN THOUSAND DOLLARS, AS 269
DETERMINED IN THE DISCRETION OF THE TRIER OF FACT, TAKING INTO 270
ACCOUNT THE WILLFULNESS OF THE VIOLATION, THE HARM TO THE PERSONA 271
IN QUESTION, AND THE ABILITY OF THE DEFENDANT TO PAY A CIVIL 272
DAMAGE AWARD;
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(c) IF APPLICABLE PURSUANT TO SECTION 2315.21 OF THE 275
REVISED CODE, PUNITIVE OR EXEMPLARY DAMAGES. 277
(2) THE TRIER OF FACT SHALL INCLUDE ANY PROFITS DERIVED 279
FROM AND ATTRIBUTABLE TO THE UNAUTHORIZED COMMERCIAL USE OF AN 280
INDIVIDUAL'S PERSONA IN CALCULATING THE AWARD OF ACTUAL DAMAGES 282
UNDER DIVISION (A)(1)(a) OF THIS SECTION. 283
(B) EACH PARTY HAS THE RIGHT TO A JURY TRIAL OF AN ACTION 286
UNDER THIS SECTION. TO ASSERT THE RIGHT, A PARTY SHALL DEMAND A 287
JURY TRIAL IN THE MANNER PRESCRIBED IN THE RULES OF CIVIL 290
PROCEDURE. IF A PARTY DEMANDS A JURY TRIAL IN THAT MANNER, THE 291
ACTION SHALL BE TRIED TO A JURY. 292
(C) AN ACTION UNDER THIS SECTION SHALL BE BROUGHT WITHIN 295
FOUR YEARS OF A VIOLATION OF SECTION 2741.02 OF THE REVISED CODE. 296
(D) A COURT IN WHICH AN ACTION UNDER THIS SECTION IS 298
BROUGHT MAY DO ANY OF THE FOLLOWING: 299
(1) AWARD THE PREVAILING PARTY REASONABLE ATTORNEY'S FEES, 302
COURT COSTS, AND REASONABLE EXPENSES ASSOCIATED WITH THE CIVIL 303
ACTION;
(2) AWARD TREBLE DAMAGES AGAINST A PARTY IDENTIFIED IN 305
DIVISION (E) OF SECTION 2741.02 OF THE REVISED CODE WHO HAS 306
KNOWLEDGE OF, OR ACTED IN RECKLESS DISREGARD IN FAILING TO 307
ACQUIRE KNOWLEDGE OF, THE UNAUTHORIZED USE OF THE PERSONA AS 309
PROHIBITED BY SECTION 2741.02 OF THE REVISED CODE; 310
(3) ORDER TEMPORARY OR PERMANENT INJUNCTIVE RELIEF; 313
(4) ORDER THE IMPOUNDMENT, ON TERMS THE COURT CONSIDERS 315
REASONABLE, OF BOTH OF THE FOLLOWING DURING THE PENDENCY OF A 316
CIVIL ACTION UNDER THIS SECTION: 317
(a) PRODUCTS, MERCHANDISE, GOODS, OR OTHER MATERIALS 320
ALLEGED TO HAVE BEEN MADE OR USED IN VIOLATION OF SECTION 2741.02 321
OF THE REVISED CODE; 323
(b) PLATES, MOLDS, AND MATRICES, OR THE SPECIFIC VIOLATIVE 325
PORTIONS OF MASTERS, TAPES, NEGATIVES, DIGITAL RECORDINGS, 326
ELECTRONIC MEDIA, OR OTHER ITEMS, FROM WHICH PRODUCTS, 327
MERCHANDISE, GOODS, OR OTHER MATERIALS MAY BE MANUFACTURED OR 329
8
REPRODUCED.
(E) AS PART OF A FINAL JUDGMENT, A COURT MAY ORDER THE 332
DESTRUCTION OR OTHER REASONABLE DISPOSITION OF ITEMS DESCRIBED IN 333
DIVISION (D)(4) OF THIS SECTION. 334
Sec. 2741.08. THE REMEDIES PROVIDED FOR IN THIS CHAPTER 336
ARE IN ADDITION TO ANY OTHER REMEDIES PROVIDED FOR BY STATE OR 337
FEDERAL STATUTE OR COMMON LAW. 338
Sec. 2741.09. (A) THIS CHAPTER DOES NOT APPLY TO ANY OF 341
THE FOLLOWING:
(1)(a) A LITERARY WORK, DRAMATIC WORK, FICTIONAL WORK, 343
HISTORICAL WORK, AUDIOVISUAL WORK, OR MUSICAL WORK REGARDLESS OF 345
THE MEDIA IN WHICH THE WORK APPEARS OR IS TRANSMITTED, OTHER THAN 346
AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT NOT EXEMPT UNDER 347
DIVISION (A)(1)(d) OF THIS SECTION; 348
(b) MATERIAL THAT HAS POLITICAL OR NEWSWORTHY VALUE; 351
(c) ORIGINAL WORKS OF FINE ART; 353
(d) AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR A USE 355
PERMITTED BY DIVISION (A)(1)(a), (b), OR (c) OF THIS SECTION. 357
(2) THE USE OF AN INDIVIDUAL'S NAME TO TRUTHFULLY IDENTIFY 360
THE INDIVIDUAL AS THE AUTHOR OF OR CONTRIBUTOR TO A WRITTEN WORK
OR THE PERFORMER OF A RECORDED PERFORMANCE UNDER CIRCUMSTANCES IN 362
WHICH THE WRITTEN WORK OR THE RECORDED PERFORMANCE IS OTHERWISE 363
LAWFULLY REPRODUCED, EXHIBITED, OR BROADCAST; 364
(3) THE USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 366
CONNECTION WITH THE BROADCAST OR REPORTING OF AN EVENT OR TOPIC 367
OF GENERAL OR PUBLIC INTEREST; 368
(4) THE USE OF THE PERSONA OF AN INDIVIDUAL SOLELY IN THE 370
INDIVIDUAL'S ROLE AS A MEMBER OF THE PUBLIC IF THE INDIVIDUAL IS 371
NOT NAMED OR OTHERWISE SINGLED OUT AS AN INDIVIDUAL. 372
(B) THIS CHAPTER DOES NOT AFFECT RIGHTS OR PRIVILEGES 374
RECOGNIZED UNDER THE OHIO CONSTITUTION OR UNITED STATES 376
CONSTITUTION.
Section 2. The enactment of Chapter 2741. of the Revised 378
Code by this act does not abrogate the common law relating to 379
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privacy as recognized by the Ohio courts in Zacchini v. 380
Scripps-Howard Broadcasting Co. (1978), 54 Ohio St.2d 286; 381
Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 383
129, rev'd on other grounds, (1977) 433 U.S. 562; Vinci v. 384
American Can Co. (Cuyahoga Cty. 1990), 69 Ohio App.3d 727; and 385
Bajpayee v. Rothermich (Franklin Cty. 1977), 53 Ohio App.2d 117. 386