4-75-1110. Exempt use — Commercial use.

4-75-1110. Exempt use — Commercial use. (a)(1) It is not a violation of this subchapter if the name, voice, signature, photograph, or likeness of an individual is used: (A) In connection with a news, public affairs, or sports broadcast, including the promotion of and advertising for a sports broadcast, an account of public interest, or a political campaign; (B) In: (i) A play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work; (ii) A work of political, public interest, or newsworthy value, including a comment, criticism, parody, satire, or a transformative creation of a work of authorship; or (iii) An advertisement or commercial announcement for any of the works described in subdivision (a)(1)(A) of this section or this subdivision (a)(1)(B); (C) In a photograph or likeness where the individual appears as a member of the public, an attendee of a photographed event, or in a public place, and the individual is not named; (D) By an institution of higher education or by a nonprofit organization, club, or supporting foundation that is authorized by the institution of higher education and established solely to advance the purposes of the institution of higher education if: (i) The use is for educational purposes or to promote the institution of higher education and its educational, athletic, or other institutional objectives; and (ii) The individual is or was affiliated with the institution, including without limitation as a: (a) Student or member of the faculty or staff; (b) Donor or campus visitor; or (c) Contractor, subcontractor, or employee; (E) By any person practicing the profession of photography or his or her representative: (i) To exhibit and display photographs in a personal portfolio through physical media or digital media unless the exhibit and display are continued by the person practicing the profession of photography after written notice objecting to the exhibit and display has been given by the individual or by his or her representative; (ii) To distribute photographs for license and sale or other transfer to third parties or to promote or advertise such activities; and (iii) To provide yearbooks to an educational institution or photographs for school publications; or (F) By a service provider of a system or network if the service provider: (i) Does not have actual knowledge that a photograph or likeness on the system or network is in violation of this subchapter; or (ii) In the absence of such actual knowledge, is not aware of facts or circumstances from which a violation of this subchapter is apparent. (2) The use of the name, voice, signature, photograph, or likeness of the individual within a work that is protected under subdivision (a)(1)(B) of this section is not an exempt use protected by subdivision (a)(1) of this section if the claimant proves that the use is so directly connected with a product, article of merchandise, good, or service other than the work itself as to constitute an act of advertising, selling, or soliciting purchases of the product, article of merchandise, good, or service by the individual without the prior consent required by this subchapter. (b)(1) The commercial use of the name, voice, signature, photograph, or likeness of the individual in a commercial medium does not constitute a commercial use for purposes of advertising or solicitation if the material containing the commercial use is authorized by the individual for commercial sponsorship or paid advertising. (2) It is a question of fact as to whether or not the commercial use of the name, voice, signature, photograph, or likeness of an individual is so directly connected with the commercial sponsorship or paid advertising as to constitute an authorized use for purposes of advertising or solicitation.