Oklahoma § 12-1449 - Unauthorized use of another person's rights of publicity

§ 12-1449. Unauthorized use of another person's rights of publicity

- Damages - Consent - Presumptions - Fact questions - Exemptions.

A. Any person who knowingly uses another's name, voice,

signature, photograph, or likeness, in any manner, on or in

products, merchandise, or goods, or for purposes of advertising or

selling, or soliciting purchases of, products, merchandise, goods,

or services, without such person's prior consent, or, in the case of

a minor, the prior consent of his parent or legal guardian, shall be

liable for any damages sustained by the person or persons injured as

a result thereof, and any profits from the unauthorized use that are

attributable to the use shall be taken into account in computing the

actual damages. In establishing such profits, the injured party or

parties are required to present proof only of the gross revenue

attributable to such use, and the person who violated this section

is required to prove his or her deductible expenses. Punitive

damages may also be awarded to the injured party or parties. The

prevailing party in any action under this section shall also be

entitled to attorney's fees and costs.

B. As used in this section, "photograph" means any photograph

or photographic reproduction, still or moving, or any videotape or

live television transmission, of any person, such that the person is

readily identifiable.

1. A person shall be deemed to be readily identifiable from a

photograph when one who views the photograph with the naked eye can

reasonably determine that the person depicted in the photograph is

the same person who is complaining of its unauthorized use.

2. If the photograph includes more than one person so

identifiable, then the person or persons complaining of the use

shall be represented as individuals rather than solely as members of

a definable group represented in the photograph. A definable group

includes, but is not limited to, the following examples: A crowd at

any sporting event, a crowd in any street or public building, the

audience at any theatrical or stage production, a glee club, or a

baseball team.

3. A person or persons shall be considered to be represented as

members of a definable group if they are represented in the

photograph solely as a result of being present at the time the

photograph was taken and have not been singled out as individuals in

any manner.

C. Where a photograph or likeness of an employee of the person

using the photograph or likeness appearing in the advertisement or

other publication prepared by or in behalf of the user is only

incidental, and not essential, to the purpose of the publication in

which it appears, there shall arise a rebuttable presumption

affecting the burden of producing evidence that the failure to

obtain the consent of the employee was not a knowing use of the

employee's photograph or likeness.

Oklahoma Statutes - Title 12. Civil Procedure

D. For purposes of this section, a use of a name, voice,

signature, photograph, or likeness in connection with any news,

public affairs, or sports broadcast or account, or any political

campaign, shall not constitute a use for which consent is required

under subsection A of this section.

E. The use of a name, voice, signature, photograph, or likeness

in a commercial medium shall not constitute a use for which consent

is required under subsection A of this section solely because the

material containing such use is commercially sponsored or contains

paid advertising. Rather it shall be a question of fact whether or

not the use of the person's name, voice, signature, photograph, or

likeness was so directly connected with the commercial sponsorship

or with the paid advertising as to constitute a use for which

consent is required under subsection A of this section.

F. Nothing in this section shall apply to the owners or

employees of any medium used for advertising, including, but not

limited to, newspapers, magazines, radio and television networks and

stations, cable television systems, billboards, and transit ads, by

whom any advertisement or solicitation in violation of this section

is published or disseminated, unless it is established that such

owners or employees had knowledge of the unauthorized use of the

person's name, voice, signature, photograph, or likeness as

prohibited by this section.

G. The remedies provided for in this section are cumulative and

shall be in addition to any others provided for by law.

Added by Laws 1985, c. 159, § 2, eff. Jan. 1, 1986.