- 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.
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.
Notes of Decisions
Cited in
14
cases (
2 in the last 5 years), 1993–2024 · leading case:
Randle v. City of Tulsa, 2024 OK 40 (Okla. 2024).
Randle v. City of Tulsa, 2024 OK 40 (Okla. 2024).
· cites it 12× “¶37 Plaintiffs submit they intentionally did not make a claim under 12 O.S. § 1449. 23 Rather, Plaintiffs assert that Defendants have been unjustly enriched through the exploitation of the harm caused to Plaintiffs.”
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 838 F. Supp. 1501 (N.D. Okla. 1993).
· cites it 7× “If Cardtoons sells its trading cards, it must compensate MLBPA under the terms of 12 O.S. § 1449. Oklahoma’s “right to publicity” statute is intended to compensate persons such as the MLBPA members for using their likeness.”
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 868 F. Supp. 1266 (N.D. Okla. 1994).
· cites it 3× “Oklahoma's statute was supplemented by the Oklahoma legislature in 1985 with Okla.Stat. tit. 12, § 1449, which is virtually identical to California's right of publicity statute, Cal.”
Lavender v. Craig Gen. Hosp., 308 P.3d 1071 (Okla. Civ. App. 2013).
“The Oklahoma Supreme Court in Woods, holding that the discovery rule applied in an action brought pursuant to 12 O.S. § 1449 for unauthorized use and publication of the plaintiff's photograph, acknowledged that the discovery rule has been applied in Oklahoma in suits for libel,…”
Lightbourne v. Printroom Inc., 307 F.R.D. 593 (C.D. Cal. 2015).
· cites it 2× “See Okla. Stat. Ann. tit. 12, § 1449 (actual damages only plus punitive damages if applicable); Cal.”
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996).
“Okla.Stat. tit. 12, § 1449(A). Thus, a civil suit for infringement of MLBPA’s publicity right under § 1449(A) requires proof of three elements: (1) knowing use of player names or likenesses (2) on products, merchandise, or goods (3) without MLBPA’s prior consent.”
Est. of Moe Norman v. Lavern (10th Cir. 2019).
· cites it 6× “§ 1125 (a), and one of Oklahoma’s right of publicity statutes, Okla. Stat. tit. 12, § 1449 . During the litigation, Mr.”
Brill v. Walt Disney Co., 2010 OK CIV APP 132 (Okla. Civ. App. 2010).
· cites it 3× “[1] Specifically, Brill claims that the fictional animated race car character "Lightning McQueen" in the movie Cars constitutes a misappropriation of his likeness and violates his right of publicity pursuant to common law and 12 O.S.2001 § 1449. Additionally, Brill asserts a…”
Bates v. P.C. Cast, 2014 OK CIV APP 8 (Okla. Civ. App. 2013).
· cites it 6× “12 O.S. §1449(A). "In order to establish a prima facie case of statutory violation of the right of publicity, a plaintiff must plead facts establishing the three elements of the claim: (1) Defendants knowingly used [Plaintiff's] name or likeness, (2) on products, merchandise or…”
Bates v. P.C. Cast, 316 P.3d 246 (Okla. Civ. App. 2013).
“However, neither Defendants nor Plaintiff adduced any evidentiary materials affecting the substance of this claim, much less demonstrating the extent of either any profits Defendants may or may not have derived from the use of Plaintiff's name, or any proximate, certain,…”
Karen Hepp v. Facebook (3rd Cir. 2021).
“org/groups/intellectual_property_la w/publications/landside/2017-18/may-june/split- personality/)). For example, some states specifically define the aspects of a person’s identity that may serve as the basis for the claim, see, e.”
— Okla. Stat. tit. 12, § 1449(A) — 8 cases
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 838 F. Supp. 1501 (N.D. Okla. 1993).
“If Cardtoons sells its trading cards, it must compensate MLBPA under the terms of 12 O.S. § 1449. Oklahoma’s “right to publicity” statute is intended to compensate persons such as the MLBPA members for using their likeness.”
Randle v. City of Tulsa, 2024 OK 40 (Okla. 2024).
“¶37 Plaintiffs submit they intentionally did not make a claim under 12 O.S. § 1449. 23 Rather, Plaintiffs assert that Defendants have been unjustly enriched through the exploitation of the harm caused to Plaintiffs.”
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 868 F. Supp. 1266 (N.D. Okla. 1994).
“Oklahoma's statute was supplemented by the Oklahoma legislature in 1985 with Okla.Stat. tit. 12, § 1449, which is virtually identical to California's right of publicity statute, Cal.”
Cardtoons, L.C. v. Major League Baseball Players Ass'n, 95 F.3d 959 (10th Cir. 1996).
“Okla.Stat. tit. 12, § 1449(A). Thus, a civil suit for infringement of MLBPA’s publicity right under § 1449(A) requires proof of three elements: (1) knowing use of player names or likenesses (2) on products, merchandise, or goods (3) without MLBPA’s prior consent.”
Bates v. P.C. Cast, 2014 OK CIV APP 8 (Okla. Civ. App. 2013).
“12 O.S. §1449(A). "In order to establish a prima facie case of statutory violation of the right of publicity, a plaintiff must plead facts establishing the three elements of the claim: (1) Defendants knowingly used [Plaintiff's] name or likeness, (2) on products, merchandise or…”
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