Bill Text: NY A05605 | 2019-2020 | General Assembly | Amended


Bill Title: Establishes the right of publicity and provides for a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual.

Spectrum: Partisan Bill (Democrat 18-0)

Status: (Introduced) 2020-07-23 - substituted by s5959d [A05605 Detail]

Download: New_York-2019-A05605-Amended.html



                STATE OF NEW YORK
        ________________________________________________________________________

                                         5605--C

                               2019-2020 Regular Sessions

                   IN ASSEMBLY

                                    February 14, 2019
                                       ___________

        Introduced  by  M.  of  A.  WEINSTEIN,  DINOWITZ,  GUNTHER, ENGLEBRIGHT,
          WEPRIN, ARROYO, NOLAN, DenDEKKER, L. ROSENTHAL,  GOTTFRIED  --  Multi-
          Sponsored  by  --  M.  of A. BRAUNSTEIN, D'URSO, FAHY, HEVESI, JAFFEE,
          STIRPE, TAYLOR -- read once and referred to the Committee on Judiciary
          -- committee discharged, bill amended, ordered  reprinted  as  amended
          and  recommitted  to  said  committee  --  committee  discharged, bill
          amended, ordered reprinted as amended and recommitted to said  commit-
          tee  --  ordered  to  a  third reading, amended and ordered reprinted,
          retaining its place on the order of third reading

        AN ACT to amend the civil rights law, in relation  to  establishing  the
          right  of  publicity  and  to  providing a private right of action for
          unlawful dissemination or publication of a sexually explicit depiction
          of an individual

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  The  civil  rights law is amended by adding a new section
     2  50-f to read as follows:
     3    § 50-f. Right of publicity. 1. For purposes of this section:
     4    a. "deceased performer" means a deceased natural person  domiciled  in
     5  this  state  at the time of death who, for gain or livelihood, was regu-
     6  larly engaged in acting, singing, dancing, or playing a musical  instru-
     7  ment.
     8    b.  "deceased personality" means any deceased natural person domiciled
     9  in this state at the time of death whose name, voice, signature,  photo-
    10  graph, or likeness has commercial value at the time of his or her death,
    11  or  because  of  his or her death, whether or not during the lifetime of
    12  that natural person the person used his or her name,  voice,  signature,
    13  photograph, or likeness on or in products, merchandise, or goods, or for
    14  purposes  of  advertising  or  selling,  or solicitation of purchase of,
    15  products, merchandise, goods, or services.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05914-20-0

        A. 5605--C                          2

     1    c. "digital replica" means a newly created, original,  computer-gener-
     2  ated,  electronic  performance  by an individual in a separate and newly
     3  created, original expressive sound  recording  or  audiovisual  work  in
     4  which the individual did not actually perform, that is so realistic that
     5  a  reasonable observer would believe it is a performance by the individ-
     6  ual being portrayed and no other individual. A digital replica does  not
     7  include the electronic reproduction, computer generated or other digital
     8  remastering  of  an  expressive  sound  recording  or  audiovisual  work
     9  consisting of an individual's original or recorded performance, nor  the
    10  making or duplication of another recording that consists entirely of the
    11  independent  fixation  of  other  sounds, even if such sounds imitate or
    12  simulate the voice of the individual.
    13    d. "sound recordings" are works that result from  the  fixation  of  a
    14  series of musical, spoken, or other sounds, but not including the sounds
    15  accompanying  a  motion picture or other audiovisual work, regardless of
    16  the nature of the material objects,  such  as  disks,  tapes,  or  other
    17  phonorecords, in which they are embodied.
    18    2. a. Any person who uses a deceased personality's name, voice, signa-
    19  ture,  photograph,  or  likeness,  in  any  manner,  on  or in products,
    20  merchandise, or goods, or for purposes of  advertising  or  selling,  or
    21  soliciting  purchases  of,  products,  merchandise,  goods, or services,
    22  without prior consent from the person or persons specified  in  subdivi-
    23  sion  four of this section, shall be liable for any damages sustained by
    24  the person or persons injured as a result thereof.
    25    b. Any person who uses a deceased performer's  digital  replica  in  a
    26  scripted  audiovisual  work  as  a  fictional  character or for the live
    27  performance of a musical work shall be liable for any damages  sustained
    28  by  the  person or persons injured as a result thereof if the use occurs
    29  without prior consent from the person or persons in subdivision four  of
    30  this  section,  if the use is likely to deceive the public into thinking
    31  it was authorized by the person or persons specified in subdivision four
    32  of this section. A use shall not be considered  likely  to  deceive  the
    33  public  into  thinking it was authorized by the person or persons speci-
    34  fied in subdivision four of this section if the person making  such  use
    35  provides  a  conspicuous disclaimer in the credits of the scripted audi-
    36  ovisual work, and in any related  advertisement  in  which  the  digital
    37  replica  appears,  stating  that  the use of the digital replica has not
    38  been authorized by the person or persons specified in  subdivision  four
    39  of this section.
    40    c. In any action brought under this section:
    41    i.  the person who violated the section shall be liable to the injured
    42  party or parties in an amount equal  to  the  greater  of  two  thousand
    43  dollars  or  the  compensatory  damages suffered by the injured party or
    44  parties, as a result of the unauthorized use, and any profits  from  the
    45  unauthorized  use  that  are  attributable to such use and are not taken
    46  into account in computing the compensatory damages.
    47    ii. in establishing profits under this subdivision, the injured  party
    48  or  parties shall be required to present proof only of the gross revenue
    49  attributable to the unauthorized use, and the person who  violated  this
    50  section is required to prove his or her deductible expenses.
    51    iii.  punitive  damages  may  also  be awarded to the injured party or
    52  parties.
    53    d. For purposes of this subdivision:
    54    i. it shall not be a violation of paragraph a of this  subdivision  if
    55  the  work  is a play, book, magazine, newspaper, or other literary work;
    56  musical work or composition; work of art or other visual work;  work  of

        A. 5605--C                          3

     1  political,  public  interest, educational or newsworthy value, including
     2  comment, criticism, parody or satire; audio or audiovisual  work,  radio
     3  or television program, if it is fictional or nonfictional entertainment;
     4  or  an advertisement or commercial announcement for any of the foregoing
     5  works.
     6    ii. it shall not be a violation of paragraph b of this subdivision  if
     7  the  work is of parody, satire, commentary, or criticism; works of poli-
     8  tical or newsworthy value, or  similar  works,  such  as  documentaries,
     9  docudramas,  or  historical  or  biographical  works,  regardless of the
    10  degree of fictionalization; a representation of a deceased performer  as
    11  himself or herself, regardless of the degree of fictionalization, except
    12  in a live performance of a musical work; de minimis or incidental; or an
    13  advertisement or commercial announcement for any of the foregoing works.
    14    iii. it shall not be a violation of this section if the use of a name,
    15  voice,  signature, photograph, or likeness occurs in connection with any
    16  news, public affairs,  or  sports  program  or  account,  regardless  of
    17  format, medium or means of transmission, or any political campaign.
    18    iv.  it  shall  not  be a violation of this section if the use is of a
    19  name, voice, signature, photograph, or likeness in a  commercial  medium
    20  solely because the material containing the use is commercially sponsored
    21  or contains paid advertising or product placement, or includes within it
    22  a  use  in  connection  with a product, article of merchandise, good, or
    23  service. Rather, it shall be a question of fact whether or not  the  use
    24  of  the  deceased  personality's  name, voice, signature, photograph, or
    25  likeness was so directly connected with the  commercial  sponsorship  or
    26  with  the  paid  advertising or product placement as to constitute a use
    27  for which consent is required under this subdivision.
    28    e. In relation to a violation of  paragraph a of this subdivision,  if
    29  a  work that is protected under paragraph d of this subdivision includes
    30  within it a use in connection with a product,  article  of  merchandise,
    31  good, or service, this use shall not be exempt under paragraph d of this
    32  subdivision,  notwithstanding  the unprotected use's inclusion in a work
    33  otherwise exempt under paragraph d of this subdivision, if the  claimant
    34  proves that this use is so directly connected with a product, article of
    35  merchandise,  good,  or  service as to constitute an act of advertising,
    36  selling, or soliciting purchases of that product,  article  of  merchan-
    37  dise, good, or service by the deceased personality without prior consent
    38  for  the  use  under  paragraph a of this subdivision from the person or
    39  persons specified in subdivision four of this section.
    40    3. The rights recognized under this section are property rights, free-
    41  ly transferable or descendible,  in  whole  or  in  part,  by  contract,
    42  license,  gift,  or  by  means  of  any  trust or any other testamentary
    43  instrument. In the absence of an  express  transfer  in  a  testamentary
    44  instrument  of  the  deceased  personality's  rights in his or her name,
    45  voice, signature, photograph, or likeness, a provision in the  testamen-
    46  tary  instrument that provides for the disposition of the residue of the
    47  deceased personality's assets shall be effective to transfer the  rights
    48  recognized  under  this  section  in  accordance  with the terms of that
    49  provision. The rights established by this section shall also  be  freely
    50  transferable  or  descendible  by contract, license, gift, trust, or any
    51  other testamentary instrument by any subsequent owner  of  the  deceased
    52  personality's  rights  as  recognized  by  this section. Nothing in this
    53  section shall be  construed  to  render  invalid  or  unenforceable  any
    54  contract  entered into by a deceased personality during his or her life-
    55  time by which the deceased personality assigned the rights, in whole  or

        A. 5605--C                          4

     1  in  part, to use his or her name, voice, signature, photograph, or like-
     2  ness.
     3    4.  The  consent  required by this section shall be exercisable by the
     4  person or persons to whom the right of consent, or portion thereof,  has
     5  been  transferred  in accordance with subdivision three of this section,
     6  or if no transfer has occurred, then by the person or  persons  to  whom
     7  the  right of consent, or portion thereof, has passed in accordance with
     8  subdivision five of this section.
     9    5. Subject to subdivisions three and four of this section, the  rights
    10  under this section of an individual dying intestate shall be distributed
    11  under  the  laws of intestate succession, and the rights and remedies of
    12  this article may be exercised and enforced by a person  or  persons  who
    13  possess at least a fifty-one percent interest of the individual's rights
    14  under  this  section.  Such persons shall make a proportional accounting
    15  to, and shall act at all times in good faith with respect to, any  other
    16  person in whom the rights being enforced have vested.
    17    6.  If  any  deceased  personality does not transfer his or her rights
    18  under this section by contract, or by means of a trust  or  testamentary
    19  instrument,  and there are no surviving persons as described in subdivi-
    20  sion five of this section, then the rights set forth in subdivision  two
    21  of this section shall terminate.
    22    7.  a. Any person claiming to be a successor in interest to the rights
    23  of a deceased personality under this section or a licensee  thereof  may
    24  register  that claim with the secretary of state on a form prescribed by
    25  the secretary of state and upon payment of a fee, which the secretary of
    26  state shall set by rule. The form shall be verified  and  shall  include
    27  the  name  and  date  of death of the deceased personality, the name and
    28  address of the claimant, the basis of the claim, and the rights claimed.
    29  A successor in interest to the rights of a  deceased  personality  under
    30  this  section or a licensee thereof shall not have a cause of action for
    31  a use prohibited by this section that occurs  before  the  successor  in
    32  interest or licensee registers a claim of the rights.
    33    b.  Upon  receipt and after filing of any document under this section,
    34  the secretary of state shall post the document  along  with  the  entire
    35  registry of persons claiming to be a successor in interest to the rights
    36  of  a  deceased  personality or a registered licensee under this section
    37  upon the secretary of state's internet website.
    38    c. Claims registered under this subdivision shall be public records.
    39    8. An action shall not be brought under this section by reason of  any
    40  use  of  a deceased personality's name, voice, signature, photograph, or
    41  likeness occurring after the expiration of forty years after  the  death
    42  of the deceased personality.
    43    9.  Nothing  in this section shall apply to the owners or employees of
    44  any medium used for advertising, including, but not limited to,  newspa-
    45  pers, magazines, radio and television networks and stations, cable tele-
    46  vision  systems,  billboards,  and  transit  advertisements, by whom any
    47  advertisement or solicitation in violation of this section is  published
    48  or  disseminated,  unless it is established that the owners or employees
    49  had actual knowledge by prior notification of the  unauthorized  use  of
    50  the deceased performer's digital replica or deceased personality's name,
    51  voice, signature, photograph, or likeness as prohibited by this section.
    52    10.  The  provisions of this section are in addition to, but shall not
    53  supersede, any other rights or remedies available in law or equity.
    54    11. This section shall apply to the adjudication of liability and  the
    55  imposition  of  any  damages  or  other  remedies  in cases in which the
    56  liability, damages, and other remedies arise from acts occurring direct-

        A. 5605--C                          5

     1  ly in this state. For purposes of this  section,  acts  giving  rise  to
     2  liability  shall  be limited to the use, on or in products, merchandise,
     3  goods, or  services,  or  the  advertising  or  selling,  or  soliciting
     4  purchases  of,  products,  merchandise, goods, or services prohibited by
     5  this section.
     6    12. Nothing in this  section  shall  be  construed  to  limit,  or  to
     7  enlarge,  the protections that 47 U.S.C. § 230 confers on an interactive
     8  computer service for content provided  by  another  information  content
     9  provider, as such terms are defined in 47 U.S.C. § 230.
    10    §  2.  The civil rights law is amended by adding a new section 52-c to
    11  read as follows:
    12    § 52-c. Private right of action for unlawful dissemination or publica-
    13  tion of a sexually explicit depiction  of  an  individual.  1.  For  the
    14  purposes of this section:
    15    a.  "depicted individual" means an individual who appears, as a result
    16  of digitization, to be  giving  a  performance  they  did  not  actually
    17  perform or to be performing in a performance that was actually performed
    18  by  the  depicted  individual  but  was  subsequently  altered  to be in
    19  violation of this section.
    20    b. "digitization" means to realistically depict the nude body parts of
    21  another human being as the nude body parts of the  depicted  individual,
    22  computer-generated  nude  body  parts  as  the  nude  body  parts of the
    23  depicted individual  or  the  depicted  individual  engaging  in  sexual
    24  conduct,  as  defined  in subdivision ten of section 130.00 of the penal
    25  law, in which the depicted individual did not engage.
    26    c. "individual" means a natural person.
    27    d. "person" means a human being or legal entity.
    28    e. "sexually explicit material" means any portion of an  audio  visual
    29  work  that shows the depicted individual performing in the nude, meaning
    30  with an unclothed or exposed intimate part, as defined in section 245.15
    31  of the penal law, or appearing to engage  in,  or  being  subjected  to,
    32  sexual  conduct,  as defined in subdivision ten of section 130.00 of the
    33  penal law.
    34    2. a. A depicted individual shall have a cause  of  action  against  a
    35  person who, discloses, disseminates or publishes sexually explicit mate-
    36  rial related to the depicted individual, and the person knows or reason-
    37  ably  should have known the depicted individual in that material did not
    38  consent to its creation, disclosure, dissemination, or publication.
    39    b. It shall not be a defense to an  action  under  this  section  that
    40  there  is  a  disclaimer in the sexually explicit material that communi-
    41  cates that the inclusion of the  depicted  individual  in  the  sexually
    42  explicit  material  was unauthorized or that the depicted individual did
    43  not participate in the creation or development of the material.
    44    3. a. A depicted individual may only consent to the creation,  disclo-
    45  sure,  dissemination,  or  publication  of sexually explicit material by
    46  knowingly and voluntarily signing an agreement written in plain language
    47  that includes a general description of the  sexually  explicit  material
    48  and the audiovisual work in which it will be incorporated.
    49    b.  A  depicted  individual  may rescind consent by delivering written
    50  notice within three business days from the date consent was given to the
    51  person in whose favor consent was made,  unless  one  of  the  following
    52  requirements is satisfied:
    53    i.  the  depicted  individual is given at least three business days to
    54  review the terms of the agreement before signing it; or

        A. 5605--C                          6

     1    ii. if the depicted individual is represented,  the  attorney,  talent
     2  agent, or personal manager authorized to represent the depicted individ-
     3  ual provides additional written approval of the signed agreement.
     4    4. a. A person is not liable under this section if:
     5    i.  the  person  discloses,  disseminates  or  publishes  the sexually
     6  explicit material in the course of reporting unlawful activity, exercis-
     7  ing the person's law enforcement duties, or hearings,  trials  or  other
     8  legal proceedings; or
     9    ii.  the  sexually  explicit material is a matter of legitimate public
    10  concern, a work of political or newsworthy value  or  similar  work,  or
    11  commentary,  criticism  or disclosure that is otherwise protected by the
    12  constitution of this state or the United States; provided that  sexually
    13  explicit  material  shall  not  be considered of newsworthy value solely
    14  because the depicted individual is a public figure.
    15    5. In any action commenced pursuant to this  section,  the  finder  of
    16  fact,  in its discretion, may award injunctive relief, punitive damages,
    17  compensatory damages, and reasonable court costs and attorney's fees.
    18    6. A cause of action or special proceeding under this section shall be
    19  commenced the later of either:
    20    a. three years after the  dissemination  or  publication  of  sexually
    21  explicit material; or
    22    b.  one  year  from  the date a person discovers, or reasonably should
    23  have discovered, the  dissemination  or  publication  of  such  sexually
    24  explicit material.
    25    7.  Nothing  in this section shall be read to require a prior criminal
    26  complaint, prosecution or conviction to establish the  elements  of  the
    27  cause of action provided for in this section.
    28    8.  The provisions of this section including the remedies are in addi-
    29  tion to, and shall not supersede, any other rights or remedies available
    30  in law or equity.
    31    9. If any provision of this section or its application to  any  person
    32  or  circumstance  is held invalid, the invalidity shall not affect other
    33  provisions or applications of this section which  can  be  given  effect
    34  without  the  invalid  provision  or  application,  and  to this end the
    35  provisions of this section are severable.
    36    10. Nothing in this  section  shall  be  construed  to  limit,  or  to
    37  enlarge,  the protections that 47 U.S.C. § 230 confers on an interactive
    38  computer service for content provided  by  another  information  content
    39  provider, as such terms are defined in 47 U.S.C. § 230.
    40    § 3. This act shall take effect on the one hundred eightieth day after
    41  it  shall  have  become a law, and shall apply to all living individuals
    42  and deceased individuals who died on or after such date.
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