Bill Text: NY A05605 | 2019-2020 | General Assembly | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
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: (Passed) 2020-11-30 - SIGNED CHAP.304 [A05605 Detail]
Download: New_York-2019-A05605-Amended.html
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: (Passed) 2020-11-30 - SIGNED CHAP.304 [A05605 Detail]
Download: New_York-2019-A05605-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 5605--A 2019-2020 Regular Sessions IN ASSEMBLY February 14, 2019 ___________ Introduced by M. of A. WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT, WEPRIN, ARROYO, NOLAN -- 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 AN ACT to amend the civil rights law and the arts and cultural affairs law, in relation to the right of privacy and the right of publicity; and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 50 of the civil rights law is renumbered section 2 50-f and a new section 50 is added to read as follows: 3 § 50. Definitions. For the purposes of sections fifty-f, fifty-g, 4 fifty-h, fifty-i and fifty-one of this article, the following terms 5 shall have the following meanings: 6 1. "Authorized representative" means an attorney, talent agent, or 7 personal manager authorized to represent the individual, or if the indi- 8 vidual does not have an attorney, talent agent, or personal manager, a 9 labor union representing performers in audiovisual work. 10 2. "Deceased individual" means a natural person who has died while 11 domiciled in the state of New York. 12 3. "Digital replica" means a computer-generated or electronic reprod- 13 uction of a living or deceased individual's likeness or voice that 14 depicts the likeness or voice of the individual being portrayed. A 15 digital replica is included within an individual's portrait. 16 4. "Secretary" means the secretary of state. 17 5. "Fund-raising" means an organized activity to solicit donations of 18 money or other goods or services from persons or entities by an organ- 19 ization, company or public entity. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05914-04-9A. 5605--A 2 1 6. "Expressive sound recording or audiovisual work" includes an audio- 2 book, interactive game, live performance, movie, radio or television 3 program, song, or like media if it is fictional, nonfictional, or 4 musical entertainment. 5 7. "Individual" means a natural person. 6 8. "Name" means the actual or assumed name, or nickname, of a living 7 or deceased individual that identifies that individual. 8 9. "Nude" means the realistic display of genitals, pubic area, anus, a 9 female's post-pubescent nipple or areola, including the use of technolo- 10 gy to depict the body parts of another as being those of the individual 11 or to impose nude body parts onto the individual. 12 10. "Person" means any natural person, firm, association, partnership, 13 corporation, company, syndicate, receiver, common law trust, conserva- 14 tor, statutory trust, or any other entity by whatever name known or 15 however organized, formed or created, and includes not-for-profit corpo- 16 rations, associations, educational and religious institutions, political 17 parties, and community, civic or other organizations. 18 11. "Persona" means, individually or collectively, the name, portrait 19 or picture, voice, or signature of an individual. 20 12. "Right of privacy" means a personal right, which protects against 21 the unauthorized use of a living individual's name, portrait or picture, 22 voice, or signature for advertising purposes or purposes of trade with- 23 out written consent and the mental, emotional, or reputational injuries 24 sustained, extinguished upon death. 25 13. "Right of publicity" means an independent property right, derived 26 from and independent of the right of privacy, which protects the unau- 27 thorized use of a living or deceased individual's name, portrait or 28 picture, voice, or signature for advertising purposes or purposes of 29 trade without written consent and the pecuniary loss sustained. 30 14. "Sexual acts" means masturbation, sexual intercourse, oral or anal 31 sexual conduct, penetration of, or with, an object, bestiality, or 32 transfer of semen onto the individual. 33 15. "Signature" means a handwritten or otherwise legally binding form 34 of an individual's name, written or authorized by that individual, which 35 distinguishes the individual from all other individuals. 36 16. "Visual work" includes: 37 a. A visual rendition including, but not limited to, a painting, draw- 38 ing, video, sculpture, mosaic, or photograph; or 39 b. A work of calligraphy; or 40 c. A work of graphic art including, but not limited to, an etching, 41 lithograph, serigraph, or offset print; or 42 d. A craft work in materials including, but not limited to, a collage, 43 assemblage, or work consisting of any combination of paragraphs a, b and 44 c of this subdivision. 45 § 2. Section 50-f of the civil rights law, as renumbered by section 46 one of this act, is amended to read as follows: 47 § 50-f. Right of privacy and right of publicity. [A person, firm or48corporation that uses for advertising purposes, or for the purposes of49trade, the name, portrait or picture of any living person without having50first obtained the written consent of such person, or if a minor of his51or her parent or guardian, is guilty of a misdemeanor.] 1. For the 52 purposes of the right of privacy, a living individual's persona shall 53 not be used for advertising purposes or purposes of trade without 54 obtaining the written consent of such person, or if a minor of his or 55 her parent or guardian. A contract to create a sexually explicit 56 digital depiction, as defined by subdivision four of section fifty-oneA. 5605--A 3 1 of this article must include a general description of the depiction and 2 the expressive audiovisual work in which it will be incorporated. An 3 individual has two business days to revoke written consent for a sexual- 4 ly explicit digital depiction unless: 5 (a) the individual was given no less than forty-eight hours to review 6 the terms of consent prior to signing it; or 7 (b) the individual's authorized representative provided written 8 approval of the terms of consent. 9 The written notice of revocation shall be sent to the person in person 10 or by sending a revocation by mail, courier, electronic transmission or 11 facsimile to the person's last known address. 12 2. For the purposes of the right of publicity, a living or deceased 13 individual's persona is personal property, freely transferable or 14 descendible, in whole or in part by contract or by means of any trust or 15 testamentary instrument, whether such contract, trust or testamentary 16 instrument was entered into or executed before or after the effective 17 date of this subdivision. Such right of publicity shall not be used for 18 advertising purposes or the purposes of trade without obtaining the 19 written consent of the individual, his or her successors or assigns as 20 provided for in the provisions of this article pertaining to the right 21 of publicity. In the case of a minor, written consent must first be 22 obtained of his or her parent or guardian for the purposes of an exclu- 23 sive or non-exclusive license as limited by section 35.03 of the arts 24 and cultural affairs law. A parent or guardian is prohibited from 25 assigning a minor's right of publicity, and such assignments shall be 26 unenforceable. Nothing in this section shall limit any other rights such 27 minor may have. 28 § 3. The civil rights law is amended by adding three new sections 29 50-g, 50-h and 50-i to read as follows: 30 § 50-g. Duration of an individual's right of publicity. Every individ- 31 ual's right of publicity shall continue to exist for forty years after 32 his or her death, and does not expire upon the death of the individual. 33 § 50-h. Methods of transfer and conveyance. 1. The rights recognized 34 under the provisions of this article pertaining to the right of public- 35 ity are freely transferable and descendible, in whole or in part, by the 36 following: 37 (a) contract; 38 (b) license; 39 (c) gift; 40 (d) trust; 41 (e) testamentary document. The rights shall vest in the persons enti- 42 tled to the right of publicity under the testamentary instrument of the 43 deceased individual effective as of the date of that individual's death. 44 In the absence of an express transfer in a testamentary instrument of 45 the deceased individual's right of publicity, a provision in the testa- 46 mentary instrument that provides for the disposition of the residue of 47 the deceased individual's assets shall be effective to transfer the 48 rights recognized under this article in accordance with the terms of 49 that provision; and 50 (f) intestate succession. The right to publicity of an individual 51 dying intestate shall be distributed under the laws of intestate 52 succession, and the rights and remedies of this article may be exercised 53 and enforced by a person or persons who possess at least a fifty-one 54 percent interest of the individual's right of publicity. Such persons 55 shall make a proportional accounting to, and shall act at all times inA. 5605--A 4 1 good faith with respect to, any other person in whom the rights being 2 enforced have vested. 3 2. The rights established by the provisions of this article pertaining 4 to the right of publicity shall also be freely transferable or descendi- 5 ble by any subsequent owner of the deceased individual's right to 6 publicity as recognized by this article. Nothing in the provisions of 7 this article pertaining to the right of publicity shall be construed to 8 render invalid or unenforceable any contract entered into by a deceased 9 individual during his or her lifetime by which the deceased individual 10 assigned the rights, in whole or in part, to use his or her right of 11 publicity as defined in this article. 12 3. If any deceased individual does not transfer his or her rights 13 under this section by contract, license, gift, trust or testamentary 14 document, and there are no surviving persons as described in paragraph 15 (f) of subdivision one of this section, then the property rights associ- 16 ated with the deceased individual's right of publicity shall terminate. 17 4. Upon the first anniversary of the deceased individual's death, any 18 person claiming to be a successor in interest who possesses at least 19 fifty-one percent interest in the right of publicity of a deceased indi- 20 vidual under this article or a licensee of a deceased individual's right 21 of publicity shall register that claim with the secretary on a form 22 prescribed by the secretary and upon payment of a fee of one hundred 23 dollars. A rights holder may voluntarily register the claim at any time 24 prior to the one-year anniversary of the deceased individual's death. 25 The form shall include the name and date of death of the deceased indi- 26 vidual, the name and address of the claimant, the basis of the claim, 27 and a sworn affidavit under penalty of perjury as to the rights claimed. 28 Claims registered under this registry and information regarding such 29 successors in interest to the deceased individual's right of publicity 30 shall be public records. 31 5. Upon receipt and after filing of any document pursuant to this 32 section, the secretary shall post the document along with the entire 33 registry of persons claiming to be successors in interest to the 34 deceased individual's right of publicity or a registered licensee under 35 this section upon an internet website developed by the secretary for 36 such purpose. The secretary may reproduce by digital or other means any 37 of the filings or documents and destroy the original filing or document. 38 6. The secretary is authorized to promulgate such regulations as he or 39 she shall deem necessary to implement the provisions of subdivisions 40 four and five of this section. 41 7. No action shall be brought under the provisions of this article 42 pertaining to the right of publicity by reason of any use of a deceased 43 individual's right of publicity occurring after the expiration of the 44 duration of the right of publicity as provided in section fifty-g of 45 this article. Furthermore, no action may be brought under the provisions 46 of this article pertaining to the right of publicity for a violation of 47 a deceased individual's right of publicity that occurs one year after 48 the anniversary of a deceased individual's death unless the claim is 49 registered. However, an action may be brought under the provisions of 50 this article pertaining to the right of publicity for a violation of a 51 deceased individual's right of publicity for any subsequent publication, 52 manufacturing, distribution, or sale or use in violation of a deceased 53 individual's right of publicity once a claim has been registered. 54 8. If there is a right of publicity registration for a deceased indi- 55 vidual, any person seeking to license the right of publicity for the 56 individual shall have the right to rely upon such registration and post-A. 5605--A 5 1 ing and thereby presume that the person who has registered and posted 2 his or her claim on the secretary's public internet website has the 3 right to assign or license the deceased individual's right of publicity. 4 The registration and posting of a person's claim to a deceased individ- 5 ual's right of publicity on the secretary's public internet website 6 shall constitute a defense to an action brought under the provisions of 7 this article pertaining to the right of publicity. 8 9. Any person who knowingly makes a false or fraudulent representation 9 in connection with a registration with the secretary to establish a 10 claim to a deceased individual's right of publicity pursuant to this 11 section shall be liable for any damages sustained as a result of the 12 false or fraudulent registration as determined by a court of competent 13 jurisdiction. 14 10. Any document filed with the secretary, whether such document is a 15 reproduction or an original, may be destroyed by the secretary forty- 16 seven years after the death of the individual whose right of publicity 17 has been registered therein. The secretary shall remove any document 18 registered and posted upon the public internet website upon showing of a 19 court order from a court of competent jurisdiction that a person claim- 20 ing to be a successor in interest to a deceased individual's right of 21 publicity has wrongfully registered such claim. 22 § 50-i. No abrogation of rights and remedies. Nothing contained in the 23 provisions of this article related to the right of publicity shall be 24 deemed to abrogate or otherwise limit any rights or remedies otherwise 25 conferred by federal or state law. 26 § 4. Section 51 of the civil rights law, as amended by chapter 674 of 27 the laws of 1995, is amended to read as follows: 28 § 51. Action for injunction and for damages. 1. Applicability. The 29 provisions of this article related to the right or privacy and the right 30 of publicity apply to an act or event that occurs within New York. 31 2. Exceptions. Consent for use of another individual's persona shall 32 not be required, except as otherwise provided in subdivisions three and 33 four of this section as it relates to digital replicas, when used in 34 connection with the following: 35 (a) news, public affairs or sports broadcast, including the promotion 36 of and advertising for a public affairs or sports broadcast, an account 37 of public interest or a political campaign; 38 (b) in: 39 (i) a play, book, magazine, newspaper, musical composition, visual 40 work, work of art, audiovisual work, radio or television program if it 41 is fictional or nonfictional entertainment, or a dramatic, literary or 42 musical work; 43 (ii) a work of political, public interest or newsworthy value includ- 44 ing a comment, criticism, parody, satire or a transformative creation of 45 a work of authorship; or 46 (iii) an advertisement or commercial announcement for any of the works 47 described in paragraph (a) of this subdivision or this paragraph; or 48 (c) fundraising purposes by not-for-profit radio and television 49 stations licensed by the federal communications commission of the United 50 States, or by not-for-profit advocacy organizations if the use is for 51 commentary or criticism; 52 (d) use of the right of publicity of a deceased individual where the 53 licensee or successor in interest has failed to register and post a 54 claim of right under section fifty-h of this article, until such time as 55 a claim of right has been registered and posted as required under such 56 section.A. 5605--A 6 1 (e) Nothing in this section relating to the right of publicity shall 2 be deemed to abrogate or otherwise limit other rights or exceptions 3 otherwise conferred by state and federal case law interpretations as to 4 the applicability of this section and section fifty of this article made 5 prior to the effective date of the chapter of the laws of two thousand 6 nineteen which amended this section. 7 3. Digital replica for purposes of trade in an expressive work. (a) 8 Use of a digital replica, as defined in subdivision three of section 9 fifty of this article, of an individual shall constitute a violation if 10 done without the consent of the individual if the use is: 11 (i) in an expressive audiovisual or audio work or sound recording, or 12 in a live performance of a dramatic work, in a manner that is intended 13 to create, and that does create, the reasonable impression that the 14 professional actor represented by the digital replica is performing, the 15 activity for which he or she is known, in the role of a fictional char- 16 acter; or 17 (ii) in an expressive audiovisual or sound recording, or in a live 18 performance of a musical work, in a manner that is intended to create, 19 and that does create, the reasonable impression that the professional 20 singer, dancer, or musician represented by the digital replica is 21 performing, the activity for which he or she is known, in such musical 22 work; or 23 (iii) in an expressive audiovisual work, in a manner that is intended 24 to create, and that does create, the reasonable impression that the 25 professional or college athlete represented by the digital replica is 26 engaging in an athletic activity for which he or she is known. 27 (b) Consent for the use of the digital replica of an individual as 28 provided in the provisions of this article shall not be required if such 29 use is: 30 (i) for purposes of parody, satire, commentary, or criticism; 31 (ii) in a work of political, public interest, or newsworthy value, or 32 similar work, including a documentary, regardless of the degree of 33 fictionalization in the work; or 34 (iii) de minimis or incidental. 35 4. Digital replica use in a pornographic work. (a) Use of a digital 36 replica to create sexually explicit material in an expressive audiovis- 37 ual work shall constitute a violation of the right of privacy if the use 38 is intended to depict and does falsely depict an individual as perform- 39 ing in the nude or as engaging in sexual acts they did not perform. 40 (b) Consent shall not be required if such use is: 41 (i) in relation to a matter of legitimate public purpose; or 42 (ii) in a work of political or newsworthy value, or similar work; or 43 (iii) for purposes of commentary or criticism. 44 5. Limited immunity. The owners or employees of any medium used for 45 advertising including, but not limited to, newspapers, magazines, radio 46 and television networks and stations, cable television systems, bill- 47 boards, and transit advertising, who make unauthorized use of an indi- 48 vidual's persona for the purpose of advertising or trade shall not be 49 liable for such use under the provisions of this article unless it is 50 established that such owner or employee had knowledge of the unauthor- 51 ized use, through presence or inclusion, of the individual's persona in 52 such advertisement or publication. 53 6. Actions for injunction and for damages. Any person whose [name,54portrait, picture or voice] persona is used within this state for adver- 55 tising purposes [or], for the purposes of trade without the written 56 consent first obtained as [above] provided [may] in the provisions ofA. 5605--A 7 1 this article is entitled to maintain an equitable action in the supreme 2 court of this state against the person[, firm or corporation] so using 3 his [name, portrait, picture or voice] or her persona, to prevent and 4 restrain the use thereof; and may also sue and recover damages for any 5 injuries sustained including an amount equal to the greater of seven 6 hundred fifty dollars or compensatory damages by reason of such use and 7 if the defendant shall have knowingly used such person's [name,8portrait, picture or voice] persona in such manner as is forbidden or 9 declared to be unlawful by [section fifty] the provisions of this arti- 10 cle relating to the right of privacy or the right of publicity, the 11 [jury] finder of fact, in its discretion, may award exemplary damages. 12 [But nothing] A violation of an individual's right of privacy or right 13 of publicity may occur without regard to whether the use or activity is 14 for profit or not-for-profit. 15 7. No defense. It shall not constitute a defense to an action for 16 violation of an individual's right of privacy or right of publicity that 17 such violation includes more than one individual. 18 8. Use and transfer. Nothing contained in this article shall be so 19 construed as to prevent any [person, firm or corporation] individual or 20 person from selling or otherwise transferring any material containing 21 such [name, portrait, picture or voice] persona in whatever medium to 22 any user of such [name, portrait, picture or voice] persona, or to any 23 third party for sale or transfer directly or indirectly to such a user, 24 for use in a manner lawful under this article[; nothing contained in25this article shall be so construed as to prevent any person, firm or26corporation, practicing the profession of photography, from exhibiting27in or about his or its establishment specimens of the work of such28establishment, unless the same is continued by such person, firm or29corporation after written notice objecting thereto has been given by the30person portrayed; and nothing]. 31 9. Visual work. Nothing contained in this article shall be so 32 construed as to prevent any person from exhibiting or displaying visual 33 work, including in a gallery or on an online portfolio specimens of the 34 work or from making the visual work available for licensing purposes in 35 so far as the terms of the sale or license does not permit the user to 36 violate this article. 37 10. Manufacturers, writers, composers and artists. Nothing contained 38 in this article shall be so construed as to prevent any person[, firm or39corporation] from using the [name, portrait, picture or voice of] perso- 40 na owned by any manufacturer or dealer in connection with the goods, 41 wares and merchandise manufactured, produced or dealt in by [him] the 42 manufacturer which [he] has been sold or disposed of with such [name,43portrait, picture or voice] persona used in connection therewith; or 44 from using the [name, portrait, picture or voice] persona of any author, 45 composer or artist in connection with his or her literary, musical or 46 artistic productions which he or she has sold or disposed of with such 47 [name, portrait, picture or voice] persona used in connection therewith. 48 11. Copyright owners of a sound recording. Nothing contained in this 49 section shall be construed to prohibit the copyright owner of a sound 50 recording from disposing of, dealing in, licensing or selling that sound 51 recording to any party, if the right to dispose of, deal in, license or 52 sell such sound recording has been conferred by contract or other writ- 53 ten document by such living person or the holder of such right. [Nothing54contained in the foregoing sentence shall be deemed to abrogate or55otherwise limit any rights or remedies otherwise conferred by federal56law or state law.]A. 5605--A 8 1 12. Termination of post mortem right of publicity. Nothing in the 2 provisions of this article pertaining to the right of publicity shall be 3 construed as prohibiting the use of the deceased individual's right of 4 publicity that occurs after the expiration of forty years following his 5 or her death. Nor shall anything in the provisions of this article 6 pertaining to the right of publicity be construed as creating liability 7 or giving rise to any remedy for any actions or conduct involving the 8 use of a deceased individual's right of publicity that occurred prior to 9 the effective date of the chapter of the laws of two thousand nineteen 10 which amended this section. 11 13. Statute of limitations. Actions brought under the provisions of 12 this article pertaining to the right of publicity shall be commenced 13 within one year of the date of discovery of the injury to the plaintiff 14 or from the date through the exercise of due diligence such injury 15 should have been discovered by the plaintiff, whichever is earlier. 16 § 5. The section heading and subdivision 3 of section 215 of the civil 17 practice law and rules are amended to read as follows: 18 Actions to be commenced within one year: against sheriff, coroner or 19 constable; for escape of prisoner; for assault, battery, false imprison- 20 ment, malicious prosecution, libel or slander; for violation of right of 21 privacy or the right of publicity; for penalty given to informer; on 22 arbitration award. 23 3. an action to recover damages for assault, battery, false imprison- 24 ment, malicious prosecution, libel, slander, false words causing special 25 damages, or a violation of the right of privacy or the right of public- 26 ity under [section fifty-one] article five of the civil rights law; 27 § 6. Subdivision 1 of section 35.03 of the arts and cultural affairs 28 law, paragraph (a) as amended by chapter 411 of the laws of 2013, is 29 amended to read as follows: 30 1. A contract made by an infant or made by a parent or guardian of an 31 infant, or a contract proposed to be so made, under which (a) the infant 32 is to perform or render services as an actor, actress, model, dancer, 33 musician, vocalist or other performing artist, or as a participant or 34 player in professional sports, [or] (b) a person is employed to render 35 services to the infant in connection with such services of the infant or 36 in connection with contracts therefor, or (c) the infant is bound to an 37 exclusive licensing contract beyond twenty-one months for use of their 38 persona for advertising purposes or purposes of trade, as defined by the 39 civil rights law, may be approved by the supreme court or the surro- 40 gate's court as provided in this section where the infant is a resident 41 of this state or the services of the infant are to be performed or 42 rendered in this state. If the contract is so approved the infant may 43 not, either during his minority or upon reaching his majority, disaffirm 44 the contract on the ground of infancy or assert that the parent or guar- 45 dian lacked authority to make the contract. A contract modified, amended 46 or assigned after its approval under this section shall be deemed a new 47 contract. 48 § 7. Severability clause. If any clause, sentence, paragraph, subdivi- 49 sion, section or part of this act shall be adjudged by any court of 50 competent jurisdiction to be invalid, such judgment shall not affect, 51 impair, or invalidate the remainder thereof, but shall be confined in 52 its operation to the clause, sentence, paragraph, subdivision, section 53 or part thereof directly involved in the controversy in which such judg- 54 ment shall have been rendered. It is hereby declared to be the intent of 55 the legislature that this act would have been enacted even if such 56 invalid provisions had not been included herein.A. 5605--A 9 1 § 8. This act shall take effect on the one hundred eightieth day after 2 it shall have become a law, and shall apply to all living individuals 3 and deceased individuals who died on or after such date.
