Oklahoma
Oklahoma recognizes both a statutory and common law right of publicity, and the tort of misappropriation. On May 11, 2016, the Governor signed the Catfishing Liability Act of 2016 which becomes effective on November 1, 2016. This law provides liability and injunctive relief against a person who “knowingly use another’s name, voice, signature or photograph or likeness through social media to create a false identity.”
Statute
YES
Both the right of publicity for the living and the deceased are protected against the unauthorized and knowing use of another’s “name, voice, signature, photograph, or likeness” on “products, merchandise or for advertising or selling such items or services.” Oklahoma also provides criminal liability for unauthorized uses of names, portraits or pictures of both the living and the dead. A separate statute also provides criminal liability for unauthorized uses of the name or picture of a member of the armed forces in advertising.
Starting on November 1, 2016, the state will also prevents the knowing use of “another’s name, voice, signature or photograph or likeness through social media to create a false identity” without consent.
There are two Oklahoma statutes that are relevant to right of publicity claims. The first was passed under the criminal laws in 1955, and then repealed and replaced in 1965, and is codfied in Okla. Stat. tit. 21§ 839.1 to 839.3. It was amended in 2006 to include protections for service members, at § 839.1A. The criminal statute is rooted in the right to privacy. The civil law is specifically designated as a right of publicity law and was signed into law in 1985. They both are valid.]
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)
Catfishing Liability Act of 2016, codified as Okla. Stat. tit. 12 § 1450
Common Law - Right of Publicity
YES
The statute states that its remedies are “cumulative” and “in addition” to any common law rights, suggesting that the statute and common law claims can both be brought. An Oklahoma appellate court has held that the underlying rights are similar.
The Supreme Court of Oklahoma has suggested that both the common law and statutory right exist in evaluating a statute of limitations issue that turned on that question. Federal courts have also suggested that both claims remain. Havenstrite v. Hartford Life Ins., 2008 WL 5450375 (N.D. Okla. 2008)
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)
Woods v. Prestwick Hous, Inc., 247 P.3d 1183 (Okla. 2011)
Bates v. Cast, 316 P.3d 246 (Okla. Civ. App. 2013)
Brill v. Walt Disney Co., 246 P.3d 1099 (Okla. Civ. App. 2010)
Common Law - Right of Privacy-Appropriation Tort
YES
The state has adopted the right to privacy and the appropriation branch of that tort.
Oklahoma courts have held that to make a misappropriation claim a plaintiff must show (1) the defendant’s use of the plaintiffs identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.
Woods v. Prestwick Hous, INc., 247 P.3d 1183 (Okla. 2011)
McCormack v. Oklahoma Pub. Co., 613 P.2d 737 (Okla. 1980)
Bates v. Cast, 316 P.3d 246 (Okla. Ct. Civ. App. 2013)
Post-Mortem Right
YES
Oklahoma has a post-mortem right of publicity that provides a cause of action whenever a “deceased personality’s name, voice, signature, photograph, or likeness” is used on “products, merchandise orgoods,” or for advertising or selling such items or services. The post-mortem term under this statute, Okla. Stat. tit. 12 § 1448, is 100 years from the time of death. Another statute, under the criminal law title, Okla. Stat. tit. 21 §839.2, seems to provide unending post-mortem rights.
Damages include injuries and attributable profits. Punitive damages are available and attorneys’ fees to the prevailing party. The rights under section 1448 are considered transferable property rights. To be actionable under § 1448 the personality cannot have died before January 1, 1936.
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO, for rights of living; YES, for dead under §1448, but not §839.1 et seq.
The right of publicity statute allows for those who do not have commercially valuable identities to bring claims. The common law appropriation tort requires a demonstration that the use of the person’s identity was because of its value, but does not necessarily require a demonstration of commercial value. In contrast, in the context of the post-mortem right the cause of action is limited to a “deceased personality,” meaning a person whose “name, voice signature, photograph, or likeness has commercial value at the time of death[.]” The person need not have commercially exploited that value during her lifetime.
Bates v. Cast, 316 P.3d 246 (Okla. Ct. Civ. App. 2013)
Does the law protect persona?
LIKELY NOT
A state court has rejected a claim that an animated race car counted as a use of a famous race car driver’s identity.
In Brill, the Oklahoma appellate court approved of criticism of other courts that had extended right of publicity claims to persona, and broad evocations of identity.
Brill v. Walt Disney Co., 246 P.3d 1099 (Okla. Ct. Civ. App. 2010)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The Tenth Circuit has applied Oklahoma’s right of publicity to noncommercial speech. The tort of appropriation has also been held by state courts to apply to noncommercial uses, though the uses may need to be for trade purposes. Sections 1448 and 1449 do not automatically attach liability because of use in a commercial medium unless it is closely aligned with paid advertising or commercial sponsorship. This suggests the possibility that these statutes are limited to commercial speech. The Tenth Circuit, however, has interpreted this language as codifying the incidental use exception. The Section 839.1 et seq. statutes are limited to uses in advertising.
A federal court has allowed a post-mortem claim under Oklahoma law to proceed against a nonfiction book. Estate of Norman v. Lavern, 2015 WL 2414565 (W.D. Okla. 2015)
Bates v. Cast, 316 P.3d 246 (Okla. Ct. Civ. App. 2013)
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)
Statutory Defenses
Section 1449 (for living individuals) provides narrow exceptions for:
- Uses in news, public affairs, sports broadcasts/analysis, and political campaigns
- Dissemination or publication by advertising medium providers unless they had knowledge of the unauthorized use.
Section 839.3 (also for living individuals) provides exceptions for:
- Professional photographers displaying their work at their places of business
- Uses prior to effective date
- Uses in resale of legitimately authorized works
The post-mortem statute provides many more exemptions, including:
- Uses in news, public affairs, sports broadcasts/analysis, and political campaigns
- Dissemination or publication of advertising medium providers unless they had knowledge of the unauthorized use.
- Uses in plays, books, magazines, newspapers, musical compositions, films, radio or television programs and advertisements for these
- Material that is of political or newsworthy value and related advertisements
- Single and original works of fine art and related advertisements
First Amendment Analysis
Oklahoma sits in the Tenth Circuit which had had occasion to consider the intersection of the First Amendment and the right of publicity in the context of Oklahoma’s right of publicity and has applied a balancing test to weigh the various interests at stake. In that case, the Tenth Circuit held that the use of baseball player’s names and images on trading cards deemed parodic in nature was protected by the First Amendment.
Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959 (10th Cir. 1996)
Other Commentary
Like many states, Oklahoma requires a person to be readily identifiable in the context of a photograph.
Oklahoma Nat. Gas Co. v. LaRue, 1998 WL 568321 (10th Cir. 1998)