This page covers legal information specific to the State of Ohio. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
Generally speaking, the right of publicity in Ohio protects against unwarranted appropriation or exploitation of one's personality. Ohio has two systems of right of publicity law: a statutory right as a property interest, and a common law right as a right of privacy.
Ohio codifies its statutory right of publicity in Ohio Rev. Code Ann. § 2741. You should first familiarize yourself with the statute.
Ohio recognizes the unwarranted appropriation or exploitation of one's personality as an actionable invasion of privacy tort. Housh v. Peth, 133 N.E.2d 340, 341 (Ohio 1956). Ohio's right of publicity statute explicitly states that a right of publicity is a property right. Ohio Rev. Code Ann. § 2741.01(D).
At common law, Ohio has not distinguished the right of publicity from the tort of misappropriation; courts commonly refer to the tort as "appropriation of one's name or likeness." A federal court applying Ohio law said that the "right of publicity is a creature of state law, and its violation gives rise to a cause of action for the commercial tort of unfair competition." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003).
THE STATUTORY RIGHT
What the Statutory Right of Publicity Protects
Ohio's statutory right of publicity is found under Ohio Rev. Code Ann. § 2741, "Right of Publicity in Individual's Persona." Ohio's right of publicity statute expressly states that its provisions are in addition to common law rights. Ohio Rev. Code Ann. § 2741.08.
The statute defines "right of publicity" as "the property right in an individual's persona to use the individual's persona for a commercial purpose." Ohio Rev. Code Ann. § 2741.01. The Ohio statute protects the following aspects of an individual's "persona," if those aspects have commercial value:
- Distinctive appearance
Ohio Rev. Code Ann. § 2741.01(A). The statute does not define the term "commercial value."
The statute defines "commercial purpose" as the use of an aspect of an individual's persona in any of the following ways:
- On or in connection with a place, a product, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
- To advertise or solicit the purchase of products, merchandise, goods, services or other commercial activities not expressly exempted under the right of publicity statute.
- To promote travel to a place.
- For fundraising.
Ohio Rev. Code Ann. § 2741.01.
Who Can Exercise the Statutory Right of Publicity
The Ohio right of publicity statute protects living and deceased natural persons for the duration of a person's lifetime plus 60 years. Ohio Rev. Code Ann. § 2741.02. The statute applies to living individuals domiciled or residing in Ohio; it applies to deceased individuals only if (1) the individual died on or after January 1, 1998, and (2) the individual's domicile or residence was in Ohio at the time of death. Ohio Rev. Code Ann. § 2741.03.
In addition to the 60-year post-mortem protection, the Ohio right of publicity statute specifically prohibits the unauthorized use of the persona of a deceased member of the Ohio National Guard or the U.S. armed forces for ten years after the date of death. Ohio Rev. Code Ann. §§ 2741.02(A)(3) and 2741.99. The Ohio statute provides both civil remedies and criminal penalties for violations of the provisions. Ohio Rev. Code Ann. § 2741.99.
Under the Ohio statute, the right of publicity is a property right and is freely transferable and descendible, in whole or in part, by:
- operation of the laws of intestate succession applicable to the state administering the majority of the real and personal property of an individual who died intestate, regardless of whether that state recognizes the right of publicity as a property right.
Ohio Rev. Code Ann. § 2741.04.
The statute requires that any consent to use an individual's right of publicity for a commercial purpose be made in writing, which includes written, electronic, digital or any other verifiable means of authorization. Ohio Rev. Code Ann. § 2741.05. Consent may be given by any person or persons (including the individual whose right of publicity is at issue) who (1) collectively own more than 50% of the right of publicity, or (2) is expressly authorized in writing to grant consent by the collective owner(s) of more than 50% of the right. Ohio Rev. Code Ann. § 2741.05(A).
The following persons may bring a civil action to enforce the publicity rights set out in the Ohio statute: (1) a person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual's right of publicity, subject to any licenses regarding that right of publicity; (2) a person, including a licensee of an individual's right of publicity, who is expressly authorized in writing by the owner or owners of an individual's right of publicity to bring a civil action; (3) a person to whom ownership or any portion of ownership of an individual's right of publicity has been transferred. Ohio Rev. Code Ann. § 2741.06(A).
Before bringing an civil action, a person who holds partial ownership of an individual's right of publicity must give notice to that person and to any other person to whom ownership has been transferred. That individual, and any other transferees of the right, may object to the proposed civil action within time frames set forth in the statute. If holders of more than fifty percent (50%) of the right of publicity object in a timely fashion, the action may not proceed. Ohio Rev. Code Ann. §§ 2741.06(B), (C).
What Constitutes a Statutory ViolationThe elements of a civil claim under the Ohio right of publicity statute are:
- use of any aspect of an individual's persona,
- for a commercial purpose,
- during the individual's lifetime or the 60 years after the date of the individual's death,
- without written consent.
Ohio Rev. Code Ann. § 2741.02.
Mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).
THE COMMON LAW RIGHT
What the Common Law Right Protects
Ohio recognizes a common law cause of action for the unauthorized commercial use of a living person's name, likeness or identity as a right of privacy. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977). "The fundamental wrong is the appropriation for one's self of the benefits of another's name, likeness, or identity, and the wrong is the same whether or not that benfit is pecuniary." Id. at 458. That court held that the applicable principles of the tort were set out in the Restatement of Torts (Second) § 652C.
"The right of publicity is an intellectual property right of recent origin which is the inherent right of every human being to control the commercial use of his or her identity." ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 928 (6th Cir. 2003) (internal citations omitted).
Ohio's common law right of publicity protects natural persons, but does not extend to deceased persons. See Reeves v. United Artists, 765 F.2d 79 (6th Cir. 1983), Young v. That Was The Week That Was, 423 F.2d 265 (6th Cir. 1970).
The Supreme Court of Ohio has not expressly stated whether Ohio common law protection requires that the person's identity have commercial value. See Vinci v. Am. Can Co., 459 N.E.2d 507, 510 (Ohio 1984). However, one court has stated that a plaintiff must plead that the misappropriated name or likeness has "intrinsic value, which was taken by defendant for its own benefit, commercial or otherwise." Jackson v. Playboy Enters., Inc., 574 F. Supp. 10, 13 (S.D. Ohio 1983)
What Constitutes a Violation of the Common Law Right
The elements of a common law claim of appropriation of a person's name or likeness are:
- Use of another person's name or likeness.
- For one's own benefit.
The use or benefit of a person's name does not have to be commercial. Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454, 458 (Ohio 1976), rev'd on other grounds, 433 U.S. 562 (1977): "The interest which the law protects is that of each individual to the exclusive use of his own identity, and that interest is entitled to protection from misuses whether the misuse is for commercial purposes or otherwise."
A defendant must have appropriated the reputation, prestige, social, or commerical standing, public interest, or other values of a person's name or likeness. Brooks v. American Broadcasting Co., 727 F. Supp. 431 (N.D. Ohio 1991), aff'd, 999 F.2d 167 (6th Cir. 1991), cert. denied, 510 U.S. 1015 (1993).
StatutoryRemedies under Ohio's right of publicity statute include:
- injunctive and other relief (e.g. impoundment and destruction of items),
- actual damages,
- statutory damages,
- attorney's fees, costs, and expenses,
- treble damages, and
- punitive or exemplary damages.
Ohio Rev. Code Ann. § 2741.07.
As noted above, the statutory remedies are supplemental to any other remedies provided by state or federal statute or common law. Ohio Rev. Code Ann. § 2741.07.
In regards to statutory damages, a plaintiff may recover statutory damages in lieu of actual damages. The trier of fact has discretion to award statutory damages of (1) not less than $2,500, and (2) not more than $10,000. Ohio Rev. Code Ann. § 2741.07(A)(1)(b). Factors to be considered in setting the amount of a statutory damage award include the:
- willfulness of the violation
- harm to the persona in question
- ability of the defendant to pay a civil damage award
Ohio Rev. Code Ann. § 2741.07(A)(1)(b).
Under the Ohio statute, a court may award treble damages against the owners or employees of any advertising medium in which an advertisement or solicitation is published or disseminated, is there is a finding that the owners or employees had knowledge of the unauthorized use of the persona. Ohio Rev. Code Ann. §§ 2741.02(E) and 2741.07(B)(2).
Civil remedies under Ohio common law include actual damages and injunctive relief. The court in James v. Bob Ross Buick, Inc., 855 N.E.2d 119, 124 (Ohio Ct. App. 2006), held that a plaintiff need not establish actual damages to prevail on a misappropriation of name claim, and a may seek to recover nominal, compensatory, and if appropriate, punitive damages for claims of misappropriation.
LIMITATIONS AND DEFENSES
All right of publicity claims, whether under the statute or common law, are limited by the First Amendment's free speech defenses, such as those related to public figures and manners of public interest.
The Ohio right of publicity statute specifically exempts use of an individual's persona in a literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than an advertisement or commercial announcement not exempt; material that has political or newsworthy value; original works of fine art; or an advertisement or commercial announcement for a use permitted in any of these works. Ohio Rev. Code Ann. § 2741.09 (A)(1).
There are also newsworthy exemptions in the statute. For example, the statute specifically exempts use of:
- an individual's name to truthfully identify the individual as the author of or contributor to a written work, or the performer of a recorded performance where the written work or the recorded performance is otherwise lawfully reproduced, exhibited or broadcast;
- an aspect of an individual's persona in connection with the broadcast or reporting of an event or topic of general or public interest; and
- an individual's persona solely in the individual's role as a member of the public if the individual is not named or otherwise singled out.
Ohio Rev. Code Ann. § 2741.09 (A)(2),(3),(4), see also Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004) (right of privacy under Ohio law does not prohibit the publication of matters of general or public interest, or the use of the name or picture of a person in connection with the publication of legitimate news.)
Other exemptions include use of:
- an individual's persona by an institution of higher education if the individual is or was a student at, or a member of the faculty or staff of, the institution; and the use is for educational purposes or to promote the institution and its educational or institutional objectives; and
- an individual's persona that is protected by the First Amendment to the Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.
Ohio Rev. Code Ann. § 2741.09(5),(6).
The statute also permits use of a deceased individual's persona for a commercial purpose if the name of the individual was the name of a business entity or a trade name at the time of the individual's death. Ohio Rev. Code § 2741.02(B)(2).Common Law
As noted above, mere incidental use of a person's name or likeness is not actionable. Vinci v. American Can Co., 591 N.E.2d 793 (Ohio 1990).
In Zacchini v. Scripps-Howard Broad. Co., the Supreme Court held that there is no consitutional privilege immunizing television stations from damages for an alleged infringement of the right of publicity which a performer has in his particular commercial activity. 433 U.S. 562, 578 (1977).
There is a legitimate public interest exception for the right of publicity. Bosley v. Wildwett.com, 310 F.Supp.2d 914, 920 (N.D. Ohio 2004), injunction stayed pending appeal, 2004 WL 1093037 (6th Cir. 2004). There is no misappropriation when a person's name or likeness is used in contact of general news reporting. Brooks v. American Broadcasting Co., 737 F. Supp. 431 (N.D. Ohio 1991).
STATUTE OF LIMITATIONS
StatutoryAn action must be brought within four years of a violation. Ohio Rev. Code Ann. § 2741.07(C).
A four year statute of limitations applies to Ohio's common law right of publicity actions under the invasion of privacy tort. Ohio Rev. Code Ann. § 2305.09(D).