Ohio
The most famous right of publicity case of all time comes from Ohio, and to date is the only case involving the right of publicity to be heard by the Supreme Court. Ohio has both a statutory and common law right of publicity, as well as a privacy-based misappropriation tort. The state provides rights to both the living and the dead by statute.
Statute
YES
Ohio provides a right of publicity in an individual’s “persona” and creates both civil and criminal actions for unauthorized uses of an individual’s persona for “commercial purposes.”
The statute defines the right of publicity as a freely transferable and descendible “property right in an individual’s persona” in the context of uses for a “commercial purpose.” The statute went into effect on November 22, 1999. The statute appears to limit actions to those who are domiciled (or otherwise residents) in the state on or after its effective date. The statute provides statutory damages, as an alternative to actual damages, of between $2500 and $10,000, which appears to be the highest amount in the country. Consent must be in writing. The criminal provision appears to apply only to deceased service members.
In 2019, Ohio passed both civil and criminal provisions prohibiting the nonconsensual dissemination of sexual images with an intent to cause harm. See Ohio Rev. Code Ann. §§ 2307.66, 2917.211
Common Law - Right of Publicity
YES
The state provides a common law right of publicity that appears to remain in place even after the passage of the statute.
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977)
Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976)
Common Law - Right of Privacy-Appropriation Tort
YES
The state has adopted the right to privacy and the appropriation branch of that tort. One is liable when one appropriates for “his own use or benefit the name or likeness of another.”
The statute has been held to not have a preemptive effect on common law privacy rights. Ohio Rev. Code § 2741.08; James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Ct. App. Ohio 2006). Ohio decided one of the earliest misappropriation cases in which a court concluded that public figures waive privacy rights. In a decision that paved the way for the development of the separate claim of the right of publicity, the Ohio Court of Common Pleas rejected an actress’ claim for a violation of her privacy rights when a theater used her image without her permission to advertise for a burlesque show in which she did not appear. Martin v. F.I.Y. Theatre Co., 1 Ohio Supp. 19 (Ct. Common Pleas Ohio 1938)
Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976)
Housh v. Peth, 133 N.E.2d 340 (Ohio 1956)
James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Ohio Ct. App. 2006)
Post-Mortem Right
YES
The Ohio statute protects a person’s identity for sixty years after death and provides a criminal penalty for the use of the persona of a member of the Ohio National Guard or the armed forces for ten years after death.
The right is limited to those who were domiciled in or residents of Ohio when they died. To have post-mortem rights under the statute, the identity-holder must have died on or after January 1, 1998. Post-mortem rights only exist if individuals have heirs or other transferees of such rights, or if the name was used as a trade name at the time of death.
Federal courts have held that there is no post-mortem right at common law in Ohio. Reeves v. United Artists, 572 F. Supp. 1231 (N.D. Ohio 1983), affirmed by Sixth Circuit, 765 F.2d 79 (6th Cir. 1985)]
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
MAYBE
The statutory right’s definition of persona limits its definition of actionable uses to those of characteristics of one’s persona that have “commercial value.” A state appellate court interpreting a common law misappropriation claim concluded, however, that the fact that the use of the person’s identity had commercial value to the defendant was sufficient at common law to state claim, even if the underlying person’s name or likeness did not otherwise have commercial value. The addition of a specified cause of action on behalf of members of the armed forces and National Guard supports such an interpretation of commercial value. A 2017 (unpublished) decision by the Sixth Circuit Court of Appeals suggests a different interpretation of the Ohio statute, one that requires a plaintiff to have an independently commercially valuable persona.
Ohio Rev. Code § 2741.01 Definitions
James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Ct. App. Ohio 2006)
Does the law protect persona?
UNCLEAR
Although the statute uses the term persona, it appears to limit the meaning of the term to a person’s “name, voice, signature, photograph, image, likeness, or distinctive appearance.” The statute also limits the meaning of “name” to an “actual, assumed or clearly identifiable name.” The issue has not been raised under the common law.
Ohio Rev. Code § 2741.01 Definitions
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The Ohio Supreme Court has made clear that the misappropriation claim can be brought without regard to whether the use is commercial.
This case, Zacchini was overruled by the U.S. Supreme Court, but on other grounds and therefore this aspect remains good law.
The statutory right of publicity requires that a use be for a “commercial purpose,” but defines a commercial purpose more broadly than commercial speech or advertising. The statute defines a “commercial purpose” as a use in connection with a “place, product, merchandise, goods, services, or other commercial activities”; for advertising of the same; for promoting travel to a place, and for the purpose of fundraising.
Ohio Rev. Code § 2741.01 Definitions
Zacchini v. Scripps-Howard Broadcasting Co., 351 N.E.2d 454 (Ohio 1976)
Bosley v. Wildwett.com, 310 F. Supp. 2d 914 (N.D. Ohio 2004)
Statutory Defenses
The Ohio Right of Publicity statute exempts the following:
- uses in connection with news, public affairs, and sports broadcasts
- literary works, dramatic works, fictional works, historical works, audiovisual works, and musical works, and related advertisements
- uses in political campaigns
- material that has political or newsworthy value, and related advertisements
- original works of fine art, and related advertisements
- truthful identifications of authors, contributors, or performers in the context of lawful reproductions, exhibitions or broadcasts
- use of a person as a general member of the public
- use by an institution of higher learning of a student, faculty member or staff member’s persona for educational or related promotional purposes
- uses protected by the First Amendment, unless the use suggests false endorsement
- media publishers and distributors of advertisements if they did not have knowledge of the unauthorized use
If application of the law violates the First Amendment, the state cannot make any exceptions, so that provision in the statute is unconstitutional on its face.
First Amendment Analysis
Ohio is the only state to have had the United States Supreme Court consider the intersection of its right of publicity and the First Amendment. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), the Supreme Court held that the First Amendment was no obstacle to liability for the showing of the “entire act” of a human cannonball performer on the television news. Ohio courts have also recognized newsworthiness and incidental use exceptions to its right of publicity and misappropriation tort.
Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977)
Zacchini v. Scripps-Howard Broad. Co., 376 N.E.2d 582 (Ohio 1978)
Zacchini v. Scripps-Howard Broad. Co., 351 N.E.2d 454 (Ohio 1976)
Ohio also sits in the Sixth Circuit which on numerous occasions has considered the right of publicity and First Amendment defenses, including in the context of Ohio law. In ETW Corp. v. Jireh, 332 F.3d 915 (6th Cir. 2003), the Sixth Circuit held that the use of a famous golfer’s image and name in artistic prints that were sold for profit was protected by the First Amendment.
The Sixth Circuit has applied the “Rogers/relatedness/Restatement Test” to evaluate First Amendment defenses in the context of the right of publicity, as well as employing a balancing approach and the transformativeness test. Under the Rogers/Restatement test, the use of a person’s identity in an expressive work is protected by the First Amendment unless the use is “wholly unrelated” to the work or is “simply a disguised commercial advertisement for the sale of goods or services.” In ETW Corp. v. Jireh Publishing, the Sixth Circuit cited this test with approval, but also considered the Tenth Circuit’s balancing approach and California’s transformative use test.
Parks v. LaFace Records, 329 F.3d 437 (6th Cir. 2003) (applying Michigan publicity law)
ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915 (6th Cir. 2003)
The decision in Zacchini has led many courts to conclude that the right of publicity can apply broadly to expressive works, like movies, television series, songs and video games, and to news and political campaigns without raising First Amendment concerns.