CHAPTER 1. RIGHTS OF PUBLICITY
IC 32-36
ARTICLE 36. PUBLICITY
IC 32-36-1
Chapter 1. Rights of Publicity
IC 32-36-1-1
Application of chapter
Sec. 1. (a) This chapter applies to an act or event that occurswithin Indiana, regardless of a personality's domicile, residence, orcitizenship.
(b) This chapter does not affect rights and privileges recognizedunder any other law that apply to a news reporting or anentertainment medium.
(c) This chapter does not apply to the following:
(1) The use of a personality's name, voice, signature,photograph, image, likeness, distinctive appearance, gestures,or mannerisms in any of the following:
(A) Literary works, theatrical works, musical compositions,film, radio, or television programs.
(B) Material that has political or newsworthy value.
(C) Original works of fine art.
(D) Promotional material or an advertisement for a newsreporting or an entertainment medium that:
(i) uses all or part of a past edition of the medium's ownbroadcast or publication; and
(ii) does not convey or reasonably suggest that apersonality endorses the news reporting or entertainmentmedium.
(E) An advertisement or commercial announcement for a usedescribed in this subdivision.
(2) The use of a personality's name to truthfully identify thepersonality as:
(A) the author of a written work; or
(B) a performer of a recorded performance;
under circumstances in which the written work or recordedperformance is otherwise rightfully reproduced, exhibited, orbroadcast.
(3) The use of a personality's:
(A) name;
(B) voice;
(C) signature;
(D) photograph;
(E) image;
(F) likeness;
(G) distinctive appearance;
(H) gestures; or
(I) mannerisms;
in connection with the broadcast or reporting of an event or a
topic of general or public interest.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-2
"Commercial purpose" defined
Sec. 2. As used in this chapter, "commercial purpose" means theuse of an aspect of a personality's right of publicity as follows:
(1) On or in connection with a product, merchandise, goods,services, or commercial activities.
(2) For advertising or soliciting purchases of products,merchandise, goods, services, or for promoting commercialactivities.
(3) For the purpose of fundraising.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-3
"Name" defined
Sec. 3. As used in this chapter, "name" means the actual orassumed name of a living or deceased natural person that is intendedto identify the person.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-4
"News reporting or an entertainment medium" defined
Sec. 4. As used in this chapter, "news reporting or anentertainment medium" means a medium that publishes, broadcasts,or disseminates advertising in the normal course of its business,including the following:
(1) Newspapers.
(2) Magazines.
(3) Radio and television networks and stations.
(4) Cable television systems.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-5
"Person" defined
Sec. 5. As used in this chapter, "person" means a natural person,a partnership, a firm, a corporation, or an unincorporated association.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-6
"Personality" defined
Sec. 6. As used in this chapter, "personality" means a living ordeceased natural person whose:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness; (7) distinctive appearance;
(8) gesture; or
(9) mannerisms;
has commercial value, whether or not the person uses or authorizesthe use of the person's rights of publicity for a commercial purposeduring the person's lifetime.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-7
"Right of publicity" defined
Sec. 7. As used in this chapter, "right of publicity" means apersonality's property interest in the personality's:
(1) name;
(2) voice;
(3) signature;
(4) photograph;
(5) image;
(6) likeness;
(7) distinctive appearance;
(8) gestures; or
(9) mannerisms.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-8
Consent to commercial purpose use of personality's right ofpublicity; duration of right
Sec. 8. (a) A person may not use an aspect of a personality's rightof publicity for a commercial purpose during the personality'slifetime or for one hundred (100) years after the date of thepersonality's death without having obtained previous written consentfrom a person specified in section 17 of this chapter.
(b) A written consent solicited or negotiated by an athlete agent(as defined in IC 25-5.2-1-2) from a student athlete (as defined inIC 25-5.2-1-2) is void if the athlete agent obtained the consent as theresult of an agency contract that:
(1) was void under IC 25-5.2-2-2 or under the law of the statewhere the agency contract was entered into;
(2) was voided by the student athlete under IC 25-5.2-2-8 or asimilar law in the state where the agency contract was enteredinto; or
(3) was entered into without the notice required underIC 35-46-4-4 or a similar law in the state where the agencycontract was entered into.
(c) A written consent for an endorsement contract (as defined inIC 35-46-4-1.5) is void if notice is not given as required byIC 35-46-4-4 or a similar law in the state where the endorsementcontract is entered into.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-9 Jurisdictional acts
Sec. 9. A person who:
(1) engages in conduct within Indiana that is prohibited undersection 8 of this chapter;
(2) creates or causes to be created within Indiana goods,merchandise, or other materials prohibited under section 8 ofthis chapter;
(3) transports or causes to be transported into Indiana goods,merchandise, or other materials created or used in violation ofsection 8 of this chapter; or
(4) knowingly causes advertising or promotional materialcreated or used in violation of section 8 of this chapter to bepublished, distributed, exhibited, or disseminated withinIndiana;
submits to the jurisdiction of Indiana courts.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-10
Damages
Sec. 10. A person who violates section 8 of this chapter may beliable for any of the following:
(1) Damages in the amount of:
(A) one thousand dollars ($1,000); or
(B) actual damages, including profits derived from theunauthorized use;
whichever is greater.
(2) Treble or punitive damages, as the injured party may elect,if the violation under section 8 of this chapter is knowing,willful, or intentional.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-11
Profits derived from unauthorized use; proof
Sec. 11. In establishing the amount of the profits under section10(1)(B) of this chapter:
(1) the plaintiff is required to prove the gross revenueattributable to the unauthorized use; and
(2) the defendant is required to prove properly deductibleexpenses.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-12
Additional remedies
Sec. 12. In addition to any damages awarded under section 10 ofthis chapter, the court:
(1) shall award to the prevailing party reasonable attorney'sfees, costs, and expenses relating to an action under thischapter; and
(2) may order temporary or permanent injunctive relief, exceptas provided by section 13 of this chapter.As added by P.L.2-2002, SEC.21.
IC 32-36-1-13
Injunctive relief; enforceability against news reporting orentertainment medium
Sec. 13. Injunctive relief is not enforceable against a newsreporting or an entertainment medium that has:
(1) contracted with a person for the publication or broadcast ofan advertisement; and
(2) incorporated the advertisement in tangible form intomaterial that has been prepared for broadcast or publication.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-14
Impoundment of materials pending resolution of action
Sec. 14. (a) This section does not apply to a news reporting or anentertainment medium.
(b) During any period that an action under this chapter is pending,a court may order the impoundment of:
(1) goods, merchandise, or other materials claimed to have beenmade or used in violation of section 8 of this chapter; and
(2) plates, molds, matrices, masters, tapes, negatives, or otheritems from which goods, merchandise, or other materialsdescribed in subdivision (1) may be manufactured orreproduced.
(c) The court may order impoundment under subsection (b) uponterms that the court considers reasonable.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-15
Destruction or other disposition of offending materials
Sec. 15. (a) This section does not apply to a news reporting or anentertainment medium.
(b) As part of a final judgment or decree, a court may order thedestruction or other reasonable disposition of items described insection 14(b) of this chapter.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-16
Property rights
Sec. 16. The rights recognized under this chapter are propertyrights, freely transferable and descendible, in whole or in part, by thefollowing:
(1) Contract.
(2) License.
(3) Gift.
(4) Trust.
(5) Testamentary document.
(6) Operation of the laws of intestate succession applicable tothe state administering the estate and property of an intestate
deceased personality, regardless of whether the state recognizesthe property rights set forth under this chapter.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-17
Exercise and enforcement of rights and remedies
Sec. 17. (a) The written consent required by section 8 of thischapter and the rights and remedies set forth in this chapter may beexercised and enforced by:
(1) a personality; or
(2) a person to whom the recognized rights of a personality havebeen transferred under section 16 of this chapter.
(b) If a transfer of a personality's recognized rights has notoccurred under section 16 of this chapter, a person to whom thepersonality's recognized rights are transferred under section 18 ofthis chapter may exercise and enforce the rights under this chapterand seek the remedies provided in this chapter.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-18
Exercise and enforcement of rights and remedies following deathof intestate personality; fractional interests
Sec. 18. (a) Subject to sections 16 and 17 of this chapter, after thedeath of an intestate personality, the rights and remedies of thischapter may be exercised and enforced by a person who possesses atotal of not less than one-half (1/2) interest of the personality'srecognized rights.
(b) A person described in subsection (a) shall account to any otherperson in whom the personality's recognized rights have vested to theextent that the other person's interest may appear.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-19
Termination of untransferred rights following personality's death
Sec. 19. If:
(1) a deceased personality's recognized rights under this chapterwere not transferred by:
(A) contract;
(B) license;
(C) gift;
(D) trust; or
(E) testamentary document; and
(2) there are no surviving persons as described in section 17 ofthis chapter to whom the deceased personality's recognizedrights pass by intestate succession;
the deceased personality's rights set forth in this chapter terminate.
As added by P.L.2-2002, SEC.21.
IC 32-36-1-20
Rights and remedies supplemental to others provided by law Sec. 20. The rights and remedies provided for in this chapter aresupplemental to any other rights and remedies provided by law.
As added by P.L.2-2002, SEC.21.