As Reported by the Senate Judiciary Committee 1
123rd General Assembly 4
Regular Session Sub. S. B. No. 54 5
1999-2000 6
SENATORS CARNES-LATTA-McLIN-MUMPER-HERINGTON-SHOEMAKER 8
_________________________________________________________________ 10
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 AN INDIVIDUAL'S NAME, VOICE, 30
SIGNATURE, PHOTOGRAPH, IMAGE, LIKENESS, OR DISTINCTIVE 31
APPEARANCE, IF ANY OF THESE ASPECTS HAVE COMMERCIAL VALUE. 32
(B) "COMMERCIAL PURPOSE" MEANS THE USE OF OR REFERENCE TO 35
AN ASPECT OF AN INDIVIDUAL'S PERSONA IN ANY OF THE FOLLOWING 36
MANNERS:
(1) ON OR IN CONNECTION WITH A PLACE, PRODUCT, 38
MERCHANDISE, GOODS, SERVICES, OR OTHER COMMERCIAL ACTIVITIES NOT 39
EXPRESSLY EXEMPTED UNDER THIS CHAPTER; 40
(2) FOR ADVERTISING OR SOLICITING THE PURCHASE OF 42
2
PRODUCTS, MERCHANDISE, GOODS, SERVICES, OR OTHER COMMERCIAL 43
ACTIVITIES NOT EXPRESSLY EXEMPTED UNDER THIS CHAPTER; 44
(3) FOR THE PURPOSE OF PROMOTING TRAVEL TO A PLACE; 46
(4) FOR THE PURPOSE OF FUNDRAISING. 48
(C) "NAME" MEANS THE ACTUAL, ASSUMED, OR CLEARLY 51
IDENTIFIABLE NAME OF OR REFERENCE TO A LIVING OR DECEASED 52
INDIVIDUAL THAT IDENTIFIES THE INDIVIDUAL.
(D) "RIGHT OF PUBLICITY" MEANS THE PROPERTY RIGHT IN AN 55
INDIVIDUAL'S PERSONA TO USE THE INDIVIDUAL'S PERSONA FOR A 56
COMMERCIAL PURPOSE.
(E) "TRIER OF FACT" MEANS THE JURY OR, IN A NONJURY 59
ACTION, THE COURT.
(F) "WRITTEN CONSENT" INCLUDES WRITTEN, ELECTRONIC, 61
DIGITAL, OR ANY OTHER VERIFIABLE MEANS OF AUTHORIZATION. 62
Sec. 2741.02. (A) EXCEPT AS OTHERWISE PROVIDED IN THIS 65
SECTION, A PERSON SHALL NOT USE ANY ASPECT OF AN INDIVIDUAL'S 66
PERSONA FOR A COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME 67
OR FOR A PERIOD OF SEVENTY-FIVE YEARS AFTER THE DATE OF THE 68
INDIVIDUAL'S DEATH. 69
(B) A PERSON MAY USE AN INDIVIDUAL'S PERSONA FOR A 72
COMMERCIAL PURPOSE DURING THE INDIVIDUAL'S LIFETIME IF THE PERSON 73
FIRST OBTAINS THE WRITTEN CONSENT TO USE THE INDIVIDUAL'S PERSONA 75
FROM A PERSON SPECIFIED IN SECTION 2741.05 OF THE REVISED CODE. 77
IF AN INDIVIDUAL WHOSE PERSONA IS AT ISSUE HAS DIED, A PERSON MAY 78
USE THE INDIVIDUAL'S PERSONA FOR A COMMERCIAL PURPOSE IF EITHER 79
OF THE FOLLOWING APPLIES:
(1) THE PERSON FIRST OBTAINS THE WRITTEN CONSENT TO USE 82
THE INDIVIDUAL'S PERSONA FROM A PERSON SPECIFIED IN SECTION
2741.05 OF THE REVISED CODE WHO OWNS THE INDIVIDUAL'S RIGHT OF 85
PUBLICITY.
(2) THE NAME OF THE INDIVIDUAL WHOSE PERSONA IS USED WAS 87
THE NAME OF A BUSINESS ENTITY OR A TRADE NAME AT THE TIME OF THE 88
INDIVIDUAL'S DEATH.
(C) SUBJECT TO THE TERMS OF ANY AGREEMENT BETWEEN A PERSON 90
3
SPECIFIED IN SECTION 2741.05 OF THE REVISED CODE AND A PERSON TO 93
WHOM THAT PERSON GRANTS CONSENT TO USE AN INDIVIDUAL'S RIGHT OF 94
PUBLICITY, A CONSENT OBTAINED BEFORE THE DEATH OF AN INDIVIDUAL 95
WHOSE PERSONA IS AT ISSUE REMAINS VALID AFTER THE INDIVIDUAL'S 96
DEATH.
(D) FOR PURPOSES OF THIS SECTION: 98
(1) A USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 100
CONNECTION WITH ANY NEWS, PUBLIC AFFAIRS, SPORTS BROADCAST, OR 101
ACCOUNT DOES NOT CONSTITUTE A USE FOR WHICH CONSENT IS REQUIRED 102
UNDER DIVISION (A) OF THIS SECTION. 103
(2) A USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 105
CONNECTION WITH ANY POLITICAL CAMPAIGN AND IN COMPLIANCE WITH 106
TITLE XXXIX OF THE REVISED CODE DOES NOT CONSTITUTE A USE FOR 108
WHICH CONSENT IS REQUIRED UNDER DIVISION (A) OF THIS SECTION.
(E) THE OWNERS OR EMPLOYEES OF ANY MEDIUM USED FOR 110
ADVERTISING, INCLUDING BUT NOT LIMITED TO, A NEWSPAPER, MAGAZINE, 111
RADIO OR TELEVISION NETWORK OR STATION, CABLE TELEVISION SYSTEM, 113
BILLBOARD, TRANSIT AD, AND GLOBAL COMMUNICATIONS NETWORK, BY WHOM 114
ANY ADVERTISEMENT OR SOLICITATION IN VIOLATION OF THIS SECTION IS 115
PUBLISHED OR DISSEMINATED ARE NOT LIABLE UNDER THIS SECTION 116
UNLESS IT IS ESTABLISHED THAT THOSE OWNERS OR EMPLOYEES HAD 117
KNOWLEDGE OF, OR ACTED IN RECKLESS DISREGARD BY FAILING TO 118
ACQUIRE KNOWLEDGE OF, THE UNAUTHORIZED USE OF THE PERSONA AS 119
PROHIBITED BY THIS SECTION.
Sec. 2741.03. EXCEPT AS OTHERWISE PROVIDED IN SECTION 121
2741.09 OF THE REVISED CODE, THIS CHAPTER APPLIES ONLY TO THE 123
FOLLOWING:
(A) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 126
WHOSE DOMICILE OR RESIDENCE IS IN THIS STATE ON OR AFTER THE 127
EFFECTIVE DATE OF THIS SECTION; 128
(B) THE RIGHT OF PUBLICITY IN THE PERSONA OF AN INDIVIDUAL 131
WHO DIED ON OR AFTER JANUARY 1, 1998, AND WHOSE DOMICILE OR 132
RESIDENCE WAS IN THIS STATE ON THE DATE OF THE INDIVIDUAL'S 133
DEATH.
4
Sec. 2741.04. THE RIGHT OF PUBLICITY IN AN INDIVIDUAL'S 135
PERSONA IS FREELY TRANSFERABLE AND DESCENDIBLE, IN WHOLE OR IN 137
PART, BY ANY OF THE FOLLOWING MEANS: 138
(A) CONTRACT; 140
(B) LICENSE; 142
(C) GIFT; 144
(D) TRUST; 146
(E) WILL; 148
(F) OPERATION OF THE LAWS OF INTESTATE SUCCESSION 151
APPLICABLE TO THE STATE ADMINISTERING THE MAJORITY OF THE REAL 152
AND PERSONAL PROPERTY OF AN INDIVIDUAL WHO DIED INTESTATE, 153
REGARDLESS OF WHETHER THAT STATE RECOGNIZES THE RIGHT OF 154
PUBLICITY AS A PROPERTY RIGHT. 155
Sec. 2741.05. (A) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED 158
IN AN AGREEMENT TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT 159
OF PUBLICITY, ONLY THE FOLLOWING PERSONS MAY GRANT CONSENT TO USE 160
AN INDIVIDUAL'S PERSONA FOR A COMMERCIAL PURPOSE: 161
(1) A PERSON OR PERSONS, INCLUDING THE INDIVIDUAL WHOSE 163
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN MORE THAN 164
FIFTY PER CENT OF THE INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO 166
THE TERMS OF ANY OTHER LICENSES REGARDING THAT RIGHT OF
PUBLICITY; 167
(2) A PERSON, INCLUDING A LICENSEE OF THE INDIVIDUAL'S 169
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING TO 170
GRANT CONSENT BY A PERSON OR PERSONS SPECIFIED IN DIVISION (A)(1) 172
OF THIS SECTION.
(B) A PERSON OR PERSONS SPECIFIED IN DIVISION (A) OF THIS 175
SECTION MAY DO ONE OR BOTH OF THE FOLLOWING: 176
(1) GRANT A PERSON OR PERSONS CONSENT TO USE ALL OR PART 178
OF AN INDIVIDUAL'S RIGHT OF PUBLICITY FOR A COMMERCIAL PURPOSE; 179
(2) LIMIT, RESTRICT, OR PLACE CONDITIONS ON HOW A PERSON 181
OR PERSONS TO WHOM CONSENT IS GRANTED PURSUANT TO THIS SECTION 182
MAY USE AN INDIVIDUAL'S RIGHT OF PUBLICITY. 183
Sec. 2741.06. (A) THE FOLLOWING PERSONS MAY BRING A CIVIL 186
5
ACTION TO ENFORCE THE RIGHTS SET FORTH IN THIS CHAPTER: 187
(1) A PERSON OR PERSONS, INCLUDING AN INDIVIDUAL WHOSE 189
RIGHT OF PUBLICITY IS AT ISSUE, WHO COLLECTIVELY OWN ALL OF AN 190
INDIVIDUAL'S RIGHT OF PUBLICITY, SUBJECT TO ANY LICENSES 191
REGARDING THAT RIGHT OF PUBLICITY; 192
(2) A PERSON, INCLUDING A LICENSEE OF AN INDIVIDUAL'S 194
RIGHT OF PUBLICITY, WHO IS EXPRESSLY AUTHORIZED IN WRITING BY THE 196
OWNER OR OWNERS OF AN INDIVIDUAL'S RIGHT OF PUBLICITY TO BRING A 197
CIVIL ACTION;
(3) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN AN AGREEMENT 199
TRANSFERRING AN ASPECT OF AN INDIVIDUAL'S RIGHT OF PUBLICITY AND 200
SUBJECT TO DIVISION (C) OF THIS SECTION, A PERSON TO WHOM 202
OWNERSHIP OR ANY PORTION OF OWNERSHIP OF AN INDIVIDUAL'S RIGHT OF 203
PUBLICITY HAS BEEN TRANSFERRED. 204
(B) BEFORE BRINGING A CIVIL ACTION UNDER THIS SECTION, A 207
PERSON WHO OWNS LESS THAN ALL OF AN INDIVIDUAL'S RIGHT OF 209
PUBLICITY SHALL NOTIFY THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS 210
THE SUBJECT OF THE PROPOSED ACTION, IF LIVING, BY REGULAR MAIL 211
ADDRESSED TO THE LAST KNOWN ADDRESS OF THAT INDIVIDUAL. THE 212
PERSON ALSO SHALL NOTIFY ANY PERSONS TO WHOM THE INDIVIDUAL'S 213
RIGHT OF PUBLICITY HAS BEEN TRANSFERRED OF THE PROPOSED CIVIL 214
ACTION BY THE FOLLOWING MEANS:
(1) REGULAR MAIL ADDRESSED TO THE LAST KNOWN ADDRESS OF 216
EACH TRANSFEREE; 217
(2) IF THE ADDRESS OF THE TRANSFEREE IS NOT KNOWN, 219
PUBLICATION IN A NEWSPAPER OF GENERAL CIRCULATION IN THE COUNTY 220
IN WHICH THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 221
OF THE PROPOSED CIVIL ACTION RESIDES, OR, IN THE CASE OF A 222
DECEASED INDIVIDUAL, IN THE COUNTY IN WHICH THE INDIVIDUAL'S 223
ESTATE HAS BEEN OR WOULD HAVE BEEN ADMITTED TO PROBATE. 224
(C) THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY IS THE SUBJECT 227
OF THE PROPOSED CIVIL ACTION BROUGHT UNDER THIS SECTION, AND ANY 229
PERSON TO WHOM OWNERSHIP OF THAT RIGHT OF PUBLICITY HAS BEEN 230
TRANSFERRED, MAY OBJECT TO THE PROPOSED CIVIL ACTION WITHIN
6
TWENTY DAYS FROM THE DATE OF THE MAILING OF THE NOTICE REFERRED 231
TO IN DIVISION (B) OF THIS SECTION OR SIXTY DAYS FROM THE DATE OF 233
PUBLICATION REFERRED TO IN THAT DIVISION BY GIVING WRITTEN NOTICE 234
OF THE OBJECTION TO THE PERSON PROPOSING THE CIVIL ACTION. IF 235
THE INDIVIDUAL OR TRANSFEREE DOES NOT OBJECT TO THE CIVIL ACTION 236
WITHIN THE TIME PERIOD SPECIFIED IN THIS DIVISION, THE INDIVIDUAL 237
OR TRANSFEREE IS FOREVER BARRED FROM OBJECTING TO THAT ACTION. 238
A PERSON MAY NOT BRING A CIVIL ACTION UNDER THIS SECTION IF 240
A PERSON OR PERSONS, INCLUDING THE INDIVIDUAL WHOSE RIGHT OF 241
PUBLICITY IS THE SUBJECT OF THE PROPOSED CIVIL ACTION, WHO 242
COLLECTIVELY OWN MORE THAN FIFTY PER CENT OF THE INDIVIDUAL'S 243
RIGHT OF PUBLICITY OBJECT TO THE PROPOSED CIVIL ACTION. 244
(D) A PERSON, OTHER THAN A LICENSEE OF AN INDIVIDUAL'S 247
RIGHT OF PUBLICITY, WHO OWNS LESS THAN ALL OF AN INDIVIDUAL'S 248
RIGHT OF PUBLICITY AND WHO BRINGS A CIVIL ACTION UNDER THIS 249
CHAPTER SHALL ACCOUNT TO ANY OTHER PERSON OWNING AN INTEREST IN 250
THAT RIGHT OF PUBLICITY TO THE EXTENT OF THE OTHER PERSON'S 251
INTEREST WITH RESPECT TO ANY NET RECOVERY IN A CIVIL ACTION LESS 252
THE PERSON'S COSTS OF COLLECTION AND REASONABLE ATTORNEY'S FEES. 253
Sec. 2741.07. (A)(1) A PERSON WHO VIOLATES SECTION 256
2741.02 OF THE REVISED CODE IS LIABLE IN A CIVIL ACTION TO THE 258
PERSON INJURED BY THE VIOLATION FOR THE FOLLOWING: 259
(a) ACTUAL DAMAGES, INCLUDING ANY PROFITS DERIVED FROM AND 261
ATTRIBUTABLE TO THE UNAUTHORIZED COMMERCIAL USE OF AN 262
INDIVIDUAL'S PERSONA AS DETERMINED UNDER DIVISION (A)(2) OF THIS 263
SECTION;
(b) AT THE ELECTION OF THE PLAINTIFF AND IN LIEU OF ACTUAL 266
DAMAGES, STATUTORY DAMAGES IN THE AMOUNT OF AT LEAST TWO THOUSAND 267
FIVE HUNDRED DOLLARS AND NOT MORE THAN TEN THOUSAND DOLLARS, AS 268
DETERMINED IN THE DISCRETION OF THE TRIER OF FACT, TAKING INTO 269
ACCOUNT THE WILLFULNESS OF THE VIOLATION, THE HARM TO THE PERSONA 270
IN QUESTION, AND THE ABILITY OF THE DEFENDANT TO PAY A CIVIL 271
DAMAGE AWARD;
(c) IF APPLICABLE PURSUANT TO SECTION 2315.21 OF THE 274
7
REVISED CODE, PUNITIVE OR EXEMPLARY DAMAGES. 276
(2) THE TRIER OF FACT SHALL INCLUDE ANY PROFITS DERIVED 278
FROM AND ATTRIBUTABLE TO THE UNAUTHORIZED COMMERCIAL USE OF AN 279
INDIVIDUAL'S PERSONA IN CALCULATING THE AWARD OF ACTUAL DAMAGES 281
UNDER DIVISION (A)(1)(a) OF THIS SECTION. 282
(B) EACH PARTY HAS THE RIGHT TO A JURY TRIAL OF AN ACTION 285
UNDER THIS SECTION. TO ASSERT THE RIGHT, A PARTY SHALL DEMAND A 286
JURY TRIAL IN THE MANNER PRESCRIBED IN THE RULES OF CIVIL 289
PROCEDURE. IF A PARTY DEMANDS A JURY TRIAL IN THAT MANNER, THE 290
ACTION SHALL BE TRIED TO A JURY. 291
(C) AN ACTION UNDER THIS SECTION SHALL BE BROUGHT WITHIN 294
FOUR YEARS OF A VIOLATION OF SECTION 2741.02 OF THE REVISED CODE. 295
(D) A COURT IN WHICH AN ACTION UNDER THIS SECTION IS 297
BROUGHT MAY DO ANY OF THE FOLLOWING: 298
(1) AWARD THE PREVAILING PARTY REASONABLE ATTORNEY'S FEES, 301
COURT COSTS, AND REASONABLE EXPENSES ASSOCIATED WITH THE CIVIL 302
ACTION;
(2) AWARD TREBLE DAMAGES AGAINST A PARTY IDENTIFIED IN 304
DIVISION (E) OF SECTION 2741.02 OF THE REVISED CODE WHO HAS 305
KNOWLEDGE OF, OR ACTED IN RECKLESS DISREGARD IN FAILING TO 306
ACQUIRE KNOWLEDGE OF, THE UNAUTHORIZED USE OF THE PERSONA AS 308
PROHIBITED BY SECTION 2741.02 OF THE REVISED CODE; 309
(3) ORDER TEMPORARY OR PERMANENT INJUNCTIVE RELIEF; 312
(4) ORDER THE IMPOUNDMENT, ON TERMS THE COURT CONSIDERS 314
REASONABLE, OF BOTH OF THE FOLLOWING DURING THE PENDENCY OF A 315
CIVIL ACTION UNDER THIS SECTION: 316
(a) PRODUCTS, MERCHANDISE, GOODS, OR OTHER MATERIALS 319
ALLEGED TO HAVE BEEN MADE OR USED IN VIOLATION OF SECTION 2741.02 320
OF THE REVISED CODE; 322
(b) PLATES, MOLDS, AND MATRICES, OR THE SPECIFIC VIOLATIVE 324
PORTIONS OF MASTERS, TAPES, NEGATIVES, DIGITAL RECORDINGS, 325
ELECTRONIC MEDIA, OR OTHER ITEMS, FROM WHICH PRODUCTS, 326
MERCHANDISE, GOODS, OR OTHER MATERIALS MAY BE MANUFACTURED OR 328
REPRODUCED.
8
(E) AS PART OF A FINAL JUDGMENT, A COURT MAY ORDER THE 331
DESTRUCTION OR OTHER REASONABLE DISPOSITION OF ITEMS DESCRIBED IN 332
DIVISION (D)(4) OF THIS SECTION. 333
Sec. 2741.08. THE REMEDIES PROVIDED FOR IN THIS CHAPTER 335
ARE IN ADDITION TO ANY OTHER REMEDIES PROVIDED FOR BY STATE OR 336
FEDERAL STATUTE OR COMMON LAW. 337
Sec. 2741.09. (A) THIS CHAPTER DOES NOT APPLY TO ANY OF 340
THE FOLLOWING:
(1)(a) A LITERARY WORK, DRAMATIC WORK, FICTIONAL WORK, 342
HISTORICAL WORK, AUDIOVISUAL WORK, OR MUSICAL WORK REGARDLESS OF 344
THE MEDIA IN WHICH THE WORK APPEARS OR IS TRANSMITTED, OTHER THAN 345
AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT NOT EXEMPT UNDER 346
DIVISION (A)(1)(d) OF THIS SECTION; 347
(b) MATERIAL THAT HAS POLITICAL OR NEWSWORTHY VALUE; 350
(c) ORIGINAL WORKS OF FINE ART; 352
(d) AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR A USE 354
PERMITTED BY DIVISION (A)(1)(a), (b), OR (c) OF THIS SECTION. 356
(2) THE USE OF AN INDIVIDUAL'S NAME TO TRUTHFULLY IDENTIFY 359
THE INDIVIDUAL AS THE AUTHOR OF OR CONTRIBUTOR TO A WRITTEN WORK
OR THE PERFORMER OF A RECORDED PERFORMANCE UNDER CIRCUMSTANCES IN 361
WHICH THE WRITTEN WORK OR THE RECORDED PERFORMANCE IS OTHERWISE 362
LAWFULLY REPRODUCED, EXHIBITED, OR BROADCAST; 363
(3) THE USE OF AN ASPECT OF AN INDIVIDUAL'S PERSONA IN 365
CONNECTION WITH THE BROADCAST OR REPORTING OF AN EVENT OR TOPIC 366
OF GENERAL OR PUBLIC INTEREST; 367
(4) THE USE OF THE PERSONA OF AN INDIVIDUAL SOLELY IN THE 369
INDIVIDUAL'S ROLE AS A MEMBER OF THE PUBLIC IF THE INDIVIDUAL IS 370
NOT NAMED OR OTHERWISE SINGLED OUT AS AN INDIVIDUAL. 371
(B) THIS CHAPTER DOES NOT AFFECT RIGHTS OR PRIVILEGES 373
RECOGNIZED UNDER THE OHIO CONSTITUTION OR UNITED STATES 375
CONSTITUTION.
Section 2. The enactment of Chapter 2741. of the Revised 377
Code by this act does not abrogate the common law relating to 378
privacy as recognized by the Ohio courts in Zacchini v. 379
9
Scripps-Howard Broadcasting Co. (1978), 54 Ohio St.2d 286; 380
Zacchini v. Scripps-Howard Broadcasting Co. (1976), 47 Ohio St.2d 382
129, rev'd on other grounds, (1977) 433 U.S. 562; Vinci v. 383
American Can Co. (Cuyahoga Cty. 1990), 69 Ohio App.3d 727; and 384
Bajpayee v. Rothermich (Franklin Cty. 1977), 53 Ohio App.2d 117. 385