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Assume the following facts:

  1. Jurisdiction: Ohio
  2. Alice is a professional athlete, well known to the public.
  3. Bob makes "fan art" of Alice and attempts to sell his art to the public.

Question: Under what circumstances would Bob's actions give rise to any civil claims by Alice against Bob?

Given the principles of "fair use" (copyright), "public figure exceptions" (defamation) and "expectations of privacy" (privacy) in the law, I'm wondering if any of these principles have found their way into the NIL space? And what the legal environment is like under the circumstances contemplated by this question.

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  • That's personal Likeness. If that is protected is jurisdiction dependant.
    – Trish
    Aug 14, 2022 at 11:29
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    I wish that any downvoters would leave a comment indicting what they think is wrong with this question. In the absence of a comment, the poster cannot improve the post, others cannot edit it to fix the issue, and readers have no idea why someone objects to the post. Such a downvote seems pointless. Aug 14, 2022 at 16:58

2 Answers 2

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Copyright, No

US Copyright does not protect names, images, or "personas". The US Copyright Office Circular 33 ("Works Not Protected by Copyright") states, on pages 2-3:

Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words.

Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include:

  • The name of an individual (including pseudonyms, pen names, or stage names)
  • The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work
  • The name of a business or organization
  • The name of a band or performing group
  • The name of a product or service
  • A domain name or URL
  • The name of a character
  • Catchwords or catchphrases
  • Mottos, slogans, or other short expression

An image, including a portrait, is usually protected by copyright (unless it is old enough that the protection has expired). But the copyright most often belongs to the creator of the image, such as the photographer or artist, not by the subject represented. If Bob draws or paints or otherwise creates an image of Alice, from seeing her in person or from multiple publicly available likenesses of her, not clearly based on any one such image, Bob will hold the copyright in that image unless he sells or otherwise transfers the copyright. Alice will not have any copyright in such an image.

Right of Publicity, Yes

Some but not all US states, and some but not all countries, recognize a "right of publicity". In Ohio, the "Right of publicity" is protected by Chapter 2741 of the Ohio Revised Code. This right extends to various aspects of a person's "persona", and may be enforced by a civil suit. These rights do not depend on a person's status as a "public figure" or "celebrity" or not. These rights are separate from any copyrights involved. These rights may be limited by the rights granted by the First Amendment to the US Federal Constitution.

Section 2741.01 (Defnitions) provides, in relevant part, that:

(A) "Persona" means an individual's name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.

(B) "Commercial purpose" means the use of or reference to an aspect of an individual's persona in any of the following manners:

(B) (1) On or in connection with a place, product, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;

(B) (2) For advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;

(B) (3) For the purpose of promoting travel to a place;

(B) (4) For the purpose of fundraising.

(C) "Name" means the actual, assumed, or clearly identifiable name of or reference to a living or deceased individual that identifies the individual.

(D) "Right of publicity" means the property right in an individual's persona to use the individual's persona for a commercial purpose.

Section 2741.02 (Using individual's persona for commercial purpose without authorization.) provides that:

(A) Except as otherwise provided in this section, a person shall not use any aspect of an individual's persona for a commercial purpose:

(A) (1) During the individual's lifetime;

(A) (2) For a period of sixty years after the date of the individual's death; or

(A) (3) For a period of ten years after the date of death of a deceased member of the Ohio national guard or the armed forces of the United States.

(B) A person may use an individual's persona for a commercial purpose during the individual's lifetime if the person first obtains the written consent to use the individual's persona from a person specified in section 2741.05 of the Revised Code. If an individual whose persona is at issue has died, a person may use the individual's persona for a commercial purpose if either of the following applies:

(B) (1) The person first obtains the written consent to use the individual's persona from a person specified in section 2741.05 of the Revised Code who owns the individual's right of publicity.

(B) (2) The name of the individual whose persona is used was the name of a business entity or a trade name at the time of the individual's death.

(C) Subject to the terms of any agreement between a person specified in section 2741.05 of the Revised Code and a person to whom that person grants consent to use an individual's right of publicity, a consent obtained before the death of an individual whose persona is at issue remains valid after the individual's death.

(D) For purposes of this section:

(D) (1) A use of an aspect of an individual's persona in connection with any news, public affairs, sports broadcast, or account does not constitute a use for which consent is required under division (A) of this section.

(D) (2) A use of an aspect of an individual's persona in connection with any political campaign and in compliance with Title XXXV of the Revised Code does not constitute a use for which consent is required under division (A) of this section.

(E) The owners or employees of any medium used for advertising, including but not limited to, a newspaper, magazine, radio or television network or station, cable television system, billboard, transit ad, and global communications network, by whom any advertisement or solicitation in violation of this section is published or disseminated are not liable under this section or section 2741.07 of the Revised Code unless it is established that those owners or employees had knowledge of the unauthorized use of the persona as prohibited by this section.

Section 2741.03 states that these rights apply only to the use of the persona of a person resident in the state of Ohio, or who was so resident when that person died on or after January 1, 1998.

Section 2741.04 states that the rights of publicity can be livened, transferred by contract, or left as an inheritance.

Section 2741.05 defines who may grant written consent for use of a persona, including the person whose persona it is, a person who owns more than 50% of the rights, and a person explicitly authorized to grant such consent (such as an agent).

Sections 2741.06 and 2741.07 authorize a civil suit for violation of rights of publicity. The plaintiff may receive any or all of: actual damages; statutory damages in an amount between $2,500.00 and $10,000.00; and in an appropriate case punitive or exemplary damages. Awards of legal costs add attorney fees are authorized. Injunctions to halt further violations are authorized. Triple damages are authorized against certain parties. Products, merchandise, and goods made in violation of these rights may be seized, and after a final judgemetn, destroyed orm otherwise disposed of.

Section 2741.09 (Exceptions) provides that:

(A) This chapter does not apply to any of the following:

(A) (1) (a) 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 under division (A)(1)(d) of this section;

(A) (1) (b) Material that has political or newsworthy value;

(A) (1) (c) Original works of fine art;

(A) (1) (d) An advertisement or commercial announcement for a use permitted by division (A)(1)(a), (b), or (c) of this section. < (A) (2) The 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 under circumstances in which the written work or the recorded performance is otherwise lawfully reproduced, exhibited, or broadcast;

(A) (3) The use of an aspect of an individual's persona in connection with the broadcast or reporting of an event or topic of general or public interest;

(A) (4) The use of the persona of an individual solely in the individual's role as a member of the public if the individual is not named or otherwise singled out as an individual;

(A) (5) A use of an individual's persona by an institution of higher education if all of the following apply:

(A) (5) (a) The individual is or was a student at, or a member of the faculty or staff of, the institution of higher education.

(A) (5) (b) The use of the individual's persona is for educational purposes or for the promotion of the institution of higher education and its educational or institutional objectives.

(A) (6) A use of the persona of an individual that is protected by the First Amendment to the United States Constitution as long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.

(B) This chapter does not affect rights or privileges recognized under the Ohio Constitution or United States Constitution.

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Alice's name is not protected by copyright. The photograph made by Ted, is protected by copyright and Ted (not Alice) could sue Bob for creating an unauthorized derivative work. Bob might be able to defend himself via a fair use argument, depending on the specific facts. The drawing that Bob made having seen the photo is protected by copyright (those elements that Bob created), and only Bob can sue for infringement (which has not happened, in your scenario).

Ohio also recognizes the right of publicity in an individual's persona, under which both Bob and Ted might be sued. Let's assume that Ted had permission to make and exploit the photo, so he is off the hook (however, permission is also not required for exploitation "in connection with any news, public affairs, sports broadcast, or account", so Ted is probably doubly-safe). Bob does not have permission, and his use is not covered by the "news" exception, and Alice can sue Bob for the damage done to her.

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    Under Ohio Section 2741.09 the right of publicity does nor apply to "Original works of fine art;" so the fan art is probably not actionable. Aug 14, 2022 at 16:55
  • 1
    Point taken....
    – user6726
    Aug 14, 2022 at 17:12

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