OHIO LEGISLATIVE SERVICE COMMISSION
Office of Research Legislative Budget
www.lsc.ohio.gov and Drafting Office
H.B. 367* Bill Analysis
135th General Assembly
Click here for H.B. 367’s Fiscal Note
Version: As Reported by House Government Oversight
Primary Sponsors: Reps. Mathews and Hillyer
Effective date:
Austin C. Strohacker, Attorney
SUMMARY
Ohio Right of Publicity Law
 Expands Ohio’s Right of Publicity Law by eliminating the requirements that an
individual’s persona have commercial value and that the unauthorized use be for a
commercial purpose in order for there to be a violation of the law.
 Prohibits the unauthorized use of a modified facsimile of an individual’s persona if a
reasonable trier of fact would confuse the modified facsimile and the individual.
 Allows the notifications required to initiate a right of publicity lawsuit to be sent by
email rather than by mail or newspaper publication.
 Specifies that exceptions to the law that otherwise authorize the use of an individual’s
persona in literary work, dramatic work, historical work, audiovisual work, or musical
work do not apply to audiovisual works that include a modified facsimile of an
individual’s persona.
Deepfake recordings
 Prohibits a person, without written consent, to prepare, produce, or develop a malicious
deepfake recording of an individual’s voice, image, or likeness to distribute, exhibit, or
exchange with others.
 Prohibits a person from recklessly distributing any malicious deepfake recording.
* This analysis was prepared before the report of the House Government Oversight Committee
appeared in the House Journal. Note that the legislative history may be incomplete.
June 13, 2024
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 Defines a “deepfake recording” as any visual or audio media in an electronic format,
video recording, or sound recording that is created or altered in a manner such that it
falsely appears to be an authentic record of the actual speech or conduct of an
individual depicted in the media or recording.
 Defines a “malicious deepfake recording” as a deepfake recording created or altered by,
or on behalf of, a person that intends to cause harm to another person due to the false
nature of the speech or conduct recorded or depicted therein.
 Provides exceptions to the prohibition under the bill for certain malicious deepfake
recordings that include a disclaimer or for those that would cause a reasonable person
to believe that the material is unauthentic.
 Specifies that a malicious deepfake recording that is pornographic or that falsely depicts
or records the speech or conduct of an individual who is under the age of 17 is
prohibited by the bill regardless of whether it includes a disclaimer.
 Authorizes an individual injured by a malicious deepfake recording and a consumer of a
deepfake recorder to sue the person that violates the bill’s provisions in a civil action.
 Allows for additional statutory damages in a civil action if the crime of extortion is
involved in connection with the malicious deepfake recording, regardless of whether
there has been a conviction of or a plea of guilty for the crime of extortion.
 Specifies that a person commits the crime of extortion (a third degree felony) when a
person distributes, exhibits, or exchanges a malicious deepfake recording that falsely
depicts or records the speech or conduct of another individual with the purpose to
obtain something of value or to induce another to do an unlawful act.
DETAILED ANALYSIS
Ohio Right of Publicity Law
Background
Ohio’s Right of Publicity Law designates the right to use an individual’s persona as a
property right. Currently, the law prohibits the unauthorized use of an individual’s persona,
such as the individual’s name, voice, signature, photograph, image, likeness, and distinctive
appearance, if it has commercial value and if it is used for a commercial purpose. Continuing
law prohibits the unauthorized use of the person’s persona during any of the following periods
of time:
1. During the individual’s lifetime;
2. For 60 years after the individual’s death;
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3. For ten years after the death of a deceased member of the Ohio National Guard or the
U.S. armed forces.1
Extension to facsimiles and noncommercial situations
The bill eliminates the requirement that the individual’s persona have commercial value
or that the use is for a commercial purpose in order to constitute a violation of the law. The bill
also prohibits the unauthorized use of a modified facsimile of an individual’s persona wherein a
reasonable trier of fact would confuse the modified facsimile and the individual. The bill does
not define “facsimile,” but Black’s Law Dictionary defines the term as “[a]n exact copy,
preserving all the marks of the original.”2
Notification requirement
Under continuing law, before initiating a civil lawsuit for a violation under the Right to
Publicity Law, a person that owns less than all of an individual’s right of publicity must notify
the individual whose right of publicity is the subject of the proposed lawsuit, if they are living,
by mail addressed to the last known address of that individual. The person must also notify any
person to whom the individual’s right of publicity has been transferred, by mail, or if the
mailing address is not known, by newspaper publication. The bill authorizes the use of email to
meet these notification requirements.3
Exceptions
Continuing law provides for several exceptions to the Right of Publicity Law. One of
those exceptions allows for the use of an individual’s persona in literary work, dramatic work,
fictional work, historical work, audiovisual work, or musical work, other than advertisements.
The bill specifies that this exemption does not apply to an audiovisual work with a modified
facsimile of an individual’s persona wherein a reasonable trier of fact would confuse the
modified facsimile and the individual. Under the bill, audiovisual works that include such a
facsimile would be subject to the law.4
The bill adds a new exception to the Right to Publicity Law for television and radio
broadcasting stations broadcasting, distributing, or exhibiting otherwise prohibited material for
consideration. This exception includes cable or satellite operators, programmers, producers,
and streaming services.5
1 R.C. 2741.01 and 2741.02.
2R.C. 2741.01(A) and (D), 2741.02(A) and (B), and 2741.05(A); and Black’s Law Dictionary, “facsimile,”
which can be found at https://thelawdictionary.org/, search term “facsimile.”
3 R.C. 2741.06(B).
4 R.C. 2741.09(A)(1)(a).
5 R.C. 2741.09(A)(7).
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Deepfake recordings
Prohibitions
The bill prohibits unauthorized preparation, production, development, distribution,
exhibition, or exchange of malicious deepfake recordings. A “deepfake recording” is defined in
the bill as any visual or audio media in an electronic format, video recording, or sound recording
that is created or altered in a manner that it falsely appears to be an authentic record of the
actual speech or conduct of an individual depicted in the media or recording. A “malicious
deepfake recording” is defined as a deepfake recording created or altered by, or on behalf of, a
person that intends to cause harm to another person due to the false nature of the speech or
conduct recorded or depicted therein.6
The bill prohibits a person, without written consent of the depicted individual, from
doing either of the following:
1. Prepare, produce, or develop any malicious deepfake recording of an individual’s voice,
image, or likeness to distribute to, exhibit to, or exchange with others;
2. Offer to distribute, exhibit, or exchange with others a malicious deepfake recording.
In addition, the bill prohibits a person from recklessly distributing any malicious
deepfake recording.7
Exceptions
Disclaimer
A malicious deepfake recording is not considered a violation of the bill’s provisions if it
includes a disclaimer in a conspicuous place that states that the media or recording has been
materially altered in a manner that renders it fictionalized and inauthentic, and it identifies the
name and contact information of the entity that is responsible for creating or distributing the
media. A malicious deepfake recording that is a political or campaign advertisement must
include such a disclaimer to be exempt from the prohibition in the bill.8
Material seems inauthentic
If the malicious deepfake recording is not a political or campaign advertisement and it
appears in a context that would cause a reasonable person to believe that the material is
inauthentic, such as in a parody or fictionalized movie, then it is also not a violation of the bill’s
prohibition, regardless of whether it includes a disclaimer.9
6 R.C. 2742.01(A) and (B).
7 R.C. 2742.02(A) and (B).
8 R.C. 2742.02(C)(2).
9 R.C. 2742.02(C)(1).
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Broadcasting stations
A malicious deepfake broadcast, distributed, or exhibited by a television or radio
broadcasting station is not considered a violation of the bill’s provisions if the station receives
consideration in exchange for broadcasting, distributing, or exhibiting the malicious deepfake.
This exception includes cable or satellite operators, programmers, producers, and streaming
services.10
Pornographic or underage material
None of the exceptions above apply to any malicious deepfake recording that is
pornographic or that falsely depicts or records the speech or conduct of an individual who is
under the age of 17, regardless of whether it includes a disclaimer or seems inauthentic.11
Civil action
Remedies
An individual injured by a malicious deepfake recording that does not meet the bill’s
exceptions may sue the person that violates the prohibition within four years after the alleged
violation for any of the following:
1. Either actual damages or, at the election of the plaintiff, statutory damages in an
amount between $2,500 and $10,000, as determined by the trier of fact, taking into
account the willfulness of the violation, the harm to the individual in question, and the
ability of the defendant to pay a civil damage award;
2. Punitive or exemplary damages, if applicable;
3. Temporary or permanent injunctive relief.12
In addition to the remedies described above, if the plaintiff establishes by a
preponderance of the evidence that the defendant committed the crime of extortion in relation
to a malicious deepfake recording, regardless of whether there has been a conviction of or plea
of guilty of the crime of extortion, the court must additionally award the plaintiff statutory
damages based on the amount the defendant extorts or attempts to extort from the plaintiff
whose voice, image, or likeness is used in the deepfake recording. The amount of statutory
damages must be determined subject to the following limitations:
 If the value of the thing of value or valuable benefit involved in the violation is less than
$1,000, the amount of statutory damages cannot exceed $2,500.
 If the value of the thing of value or valuable benefit involved in the violation is $1,000
and less than $7,500, the amount of statutory damages cannot exceed $5,000.
10 R.C. 2742.02(E).
11 R.C. 2742.02 (D).
12 R.C. 2742.03(A) and (C).
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 If the value of the thing of value or valuable benefit involved in the violation is $7,500
and less than $150,000, the amount of statutory damages cannot exceed $10,000.
 If the value of the thing of value or valuable benefit involved in the violation is $150,000
or more, the amount of statutory damages cannot exceed $15,000.13
The court may also award the prevailing party reasonable attorney’s fees, court costs,
and reasonable expenses associated with the civil action. As part of a final judgment, a court
may order the destruction or other reasonable disposition of a malicious deepfake recording,
including by requiring the defendant to take affirmative steps to cause others to take down the
malicious deepfake recording and by requiring the defendant to indemnify the plaintiff for any
past or future expenses associated with the plaintiff’s efforts to have the malicious deepfake
recording removed or destroyed. The trier of fact must include any profits derived from, and
attributable to, a violation in calculating the award of actual damages.14
The remedies described above are in addition to any other remedies provided for by
state or federal statute or common law.15
Standing
Under the bill, any person that purchases a deepfake recording, while holding a
good-faith belief that the recording is authentic, may commence a civil action in a court of
competent jurisdiction against a person who violates the prohibition under the bill for either
(1) treble the amount of the actual economic damages or (2) at the direction of the plaintiff,
statutory damages in the amount of $250.16
Crime of extortion
The bill specifies that a person commits the crime of extortion, a third degree felony,
when a person distributes, exhibits, or exchanges a malicious deepfake recording that falsely
depicts or records the speech or conduct of another individual with the purpose to obtain
something of value or to induce another to do an unlawful act.17
13 R.C. 2742.03(B).
14 R.C. 2742.03(D), (E), and (F).
15 R.C. 2742.04(A).
16 R.C. 2742.04(B).
17 R.C. 2905.11.
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HISTORY
Action Date
Introduced 12-21-23
Reported, H. Government Oversight --
ANHB0367RH-135/ts
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Statutes affected:
As Introduced: 2741.01, 2741.02, 2741.05, 2741.06, 2741.09, 2905.11
As Reported By House Committee: 2741.01, 2741.02, 2741.05, 2741.06, 2741.09, 2905.11