Terry L. Watt
The right of publicity is the right of an individual to control the use of his or her identity for commercial purposes. This area of the law is rooted in the law of privacy and is governed by state, rather than federal law, although occasionally federal trademark law may be implicated. Some states allow this right to be extinguished upon death. Others provide for transfer by will or intestate succession.
Oklahoma has statutory provisions that prohibit unauthorized commercial use of an individual’s name, voice, signature, photograph, or likeness, i.e., their persona, both before and after their death. Section §1448 of Title 12 instructs that the right of publicity survives death and can be claimed by heirs and devisees. A similar statute covers the rights of living individuals. Neither requires that the individual be famous: All that is required is that the individual’s persona have some commercial value when used in connection with advertising or purchase of goods or services. Here are some key provisions of Oklahoma’s statutory scheme as it is applied to decedents:
• Transferability. Decedent’s right of publicity is a property right that is freely transferable by will, intestate succession, or contract. These rights can only be claimed by individuals who collectively own more than one-half interest in the deceased’s publicity rights.
• Duration. Oklahoma law generously provides for up to 100 years of term, i.e., the right to control exploitation of a deceased person’s persona extends for 100 years after their death.
• Registration is required. A claimant to publicity rights of a deceased person must register the claim with the Secretary of State. Damages for misappropriation cannot be obtained for acts that occur before registration.
• Attorney’s fees. The prevailing party in a lawsuit under this statutory section is entitled to attorney’s fees and costs. This provision can make cases with only be minimal damages economically viable, although it also presents a potential risk to the unsuccessful plaintiff.
• Damages. Profits attributable to unauthorized use are to be considered when determining damages, with the plaintiff only needing to establish gross proceeds and the defendant tasked with proving deductible expenses. Punitive damages are also available.
Finally, as might be expected and consistent with the First Amendment, there are broad exceptions for the use of an individual’s persona in connection with news, public affairs, sports broadcast, or political campaigns. Thus, newsworthy publications about a deceased individual are not actionable under this statute.
Terry Watt is an attorney with Fellers Snider.
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September 28, 2021 at 04:53AM
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Watt: Decedent's right of publicity in Oklahoma - Journal Record
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