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.” 

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.

Ohio Rev. Code § 2741.08

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977)

Zacchini v. Scripps-Howard Broadcasting 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.”

Zacchini v. Scripps-Howard Broadcasting 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 (Ct. App. Ohio 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.

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)]

Ohio Rev. Code § 2741.02

Ohio Rev. Code § 2741.03

Ohio Rev. Code § 2741.99

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 that the federal appellate court currently has 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

Ohio Rev. Code § 2741.02

Ohio Rev. Code § 2741.99

James v. Bob Ross Buick, Inc., 855 N.E.2d 119 (Ct. App. Ohio 2006)

Roe v. Amazon (6th Cir. 2017)

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.

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

Ohio Rev. Code § 2741.02

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
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 Broadcasting Co., 433 U.S. 562 (1977)

Zacchini v. Scripps-Howard Broadcasting Co., 376 N.E.2d 582 (Ohio 1978)

Zacchini v. Scripps-Howard Broadcasting 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.

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)

Page last updated on: December 14, 2017

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