Bill Text: NY S05857 | 2017-2018 | General Assembly | Amended

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Bill Title: Establishes the right of privacy and the right of publicity for both living and deceased individuals; provides that an individual's persona is the personal property of the individual and is freely transferable and descendible; provides for the registration with the department of state of such rights of a deceased individual; and that the use of a digital replica for purposes of trade within an expressive work shall be a violation.

Spectrum: Slight Partisan Bill (Democrat 6-2)

Status: (Introduced - Dead) 2018-06-08 - PRINT NUMBER 5857B [S05857 Detail]

Download: New_York-2017-S05857-Amended.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                         5857--B
            Cal. No. 1131
                               2017-2018 Regular Sessions
                    IN SENATE
                                       May 3, 2017
                                       ___________
        Introduced  by  Sens. SAVINO, AKSHAR, ALCANTARA, AVELLA, CROCI, HAMILTON
          -- read twice and ordered printed, and when printed to be committed to
          the Committee on Judiciary -- reported favorably from said  committee,
          ordered  to  first  and  second  report,  ordered  to a third reading,
          amended and ordered reprinted, retaining its place  in  the  order  of
          third  reading -- recommitted to the Committee on Judiciary in accord-
          ance with Senate Rule 6, sec. 8 -- committee discharged, bill amended,
          ordered reprinted as amended and recommitted to said committee
        AN ACT to amend the civil rights law, in relation to the right of priva-
          cy 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.  "Deceased  individual"  means any individual, including his or her
     7  persona, who has died.
     8    2. "Digital replica" means a computer-generated or electronic  reprod-
     9  uction of a living or deceased individual's likeness or voice that real-
    10  istically  depicts  the  likeness  or  voice  of  the  individual  being
    11  portrayed.  A  digital  replica  is  included  within  an   individual's
    12  portrait.
    13    3. "Secretary" means the secretary of state.
    14    4.  "Fund-raising" means an organized activity to solicit donations of
    15  money or other goods or services from persons or entities by  an  organ-
    16  ization, company or public entity.
    17    5. "Individual" means a natural person, living or dead.
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11325-06-8
        S. 5857--B                          2
     1    6.  "Name"  means the actual or assumed name, or nickname, of a living
     2  or deceased individual that identifies that individual.
     3    7.  "Person" means any natural person, firm, association, partnership,
     4  corporation, company, syndicate, receiver, common law  trust,  conserva-
     5  tor,  statutory  trust,  or  any  other entity by whatever name known or
     6  however organized, formed or created, and includes not-for-profit corpo-
     7  rations, associations, educational and religious institutions, political
     8  parties, and community, civic or other organizations.
     9    8. "Persona" means, individually or collectively, the  name,  portrait
    10  or picture, voice, or signature of an individual.
    11    9.  "Right  of privacy" means a personal right, which protects against
    12  the unauthorized use of a living individual's name, portrait or picture,
    13  voice, or signature for advertising purposes or purposes of trade  with-
    14  out written consent, extinguished upon death.
    15    10.  "Right of publicity" means an independent property right, derived
    16  from and independent of the right of privacy, which protects  the  unau-
    17  thorized  use  of  a  living  or deceased individual's name, portrait or
    18  picture, voice, or signature for advertising  purposes  or  purposes  of
    19  trade without written consent.
    20    11.  "Signature" means a handwritten or otherwise legally binding form
    21  of an individual's name, written or authorized by that individual, which
    22  distinguishes the individual from all other individuals.
    23    § 2. Section 50-f of the civil rights law, as  renumbered  by  section
    24  one of this act, is amended to read as follows:
    25    §  50-f.  Right of privacy and right of publicity.  [A person, firm or
    26  corporation that uses for advertising purposes, or for the  purposes  of
    27  trade, the name, portrait or picture of any living person without having
    28  first  obtained the written consent of such person, or if a minor of his
    29  or her parent or guardian, is guilty  of  a  misdemeanor.]  1.  For  the
    30  purposes  of  the  right of privacy, a living individual's persona shall
    31  not be used for  advertising  purposes  or  purposes  of  trade  without
    32  obtaining  the  written  consent of such person, or if a minor of his or
    33  her parent or guardian.
    34    2. For the purposes of the right of publicity, a  living  or  deceased
    35  individual's  persona  is  personal  property,  freely  transferable  or
    36  descendible, in whole or in part by contract or by means of any trust or
    37  testamentary instrument, whether such contract,  trust  or  testamentary
    38  instrument  was  entered  into or executed before or after the effective
    39  date of this subdivision.  Such right of publicity shall not be used for
    40  advertising purposes or the purposes  of  trade  without  obtaining  the
    41  written  consent  of the individual, his or her successors or assigns as
    42  provided for in the provisions of this article pertaining to  the  right
    43  of  publicity.  In  the  case  of a minor, written consent must first be
    44  obtained of his or her parent or guardian for the purposes of an  exclu-
    45  sive  or  non-exclusive  license as limited by section 35.03 of the arts
    46  and cultural affairs law.  A  parent  or  guardian  is  prohibited  from
    47  assigning  a  minor's  right of publicity, and such assignments shall be
    48  unenforceable. Nothing in this section shall limit any other rights such
    49  minor may have.
    50    § 3. The civil rights law is amended  by  adding  three  new  sections
    51  50-g, 50-h and 50-i to read as follows:
    52    § 50-g. Duration of an individual's right of publicity. Every individ-
    53  ual's  right  of publicity shall continue to exist for forty years after
    54  his or her death, and does not expire upon the death of the individual.
    55    § 50-h. Methods of transfer and conveyance. 1. The  rights  recognized
    56  under  the provisions of this article pertaining to the right of public-
        S. 5857--B                          3
     1  ity are freely transferable and descendible, in whole or in part, by the
     2  following:
     3    (a) contract;
     4    (b) license;
     5    (c) gift;
     6    (d) trust;
     7    (e)  testamentary document. The rights shall vest in the persons enti-
     8  tled to the right of publicity under the testamentary instrument of  the
     9  deceased individual effective as of the date of that individual's death.
    10  In  the  absence  of an express transfer in a testamentary instrument of
    11  the deceased individual's right of publicity, a provision in the  testa-
    12  mentary  instrument  that provides for the disposition of the residue of
    13  the deceased individual's assets shall  be  effective  to  transfer  the
    14  rights  recognized  under  this  article in accordance with the terms of
    15  that provision; and
    16    (f) intestate succession. The right  to  publicity  of  an  individual
    17  dying  intestate  shall  be  distributed  under  the  laws  of intestate
    18  succession, and the rights and remedies of this article may be exercised
    19  and enforced by a person or persons who possess  at  least  a  fifty-one
    20  percent  interest  of  the individual's right of publicity. Such persons
    21  shall make a proportional accounting to, and shall act at all  times  in
    22  good  faith  with  respect to, any other person in whom the rights being
    23  enforced have vested.
    24    2. The rights established by the provisions of this article pertaining
    25  to the right of publicity shall also be freely transferable or descendi-
    26  ble by any subsequent  owner  of  the  deceased  individual's  right  to
    27  publicity  as  recognized  by this article. Nothing in the provisions of
    28  this article pertaining to the right of publicity shall be construed  to
    29  render  invalid or unenforceable any contract entered into by a deceased
    30  individual during his or her lifetime by which the  deceased  individual
    31  assigned  the  rights,  in  whole or in part, to use his or her right of
    32  publicity as defined in this article.
    33    3. If any deceased individual does not  transfer  his  or  her  rights
    34  under  this  section  by  contract, license, gift, trust or testamentary
    35  document, and there are no surviving persons as described  in  paragraph
    36  (f) of subdivision one of this section, then the property rights associ-
    37  ated with the deceased individual's right of publicity shall terminate.
    38    4.  Any  person claiming to be a successor in interest to the right of
    39  publicity of a deceased individual under this article or a licensee of a
    40  deceased individual's right of publicity shall register that claim  with
    41  the  secretary on a form prescribed by the secretary and upon payment of
    42  a fee of one hundred dollars. The form shall include the name  and  date
    43  of  death of the deceased individual, the name and address of the claim-
    44  ant, the basis of the claim, and a  sworn  affidavit  under  penalty  of
    45  perjury  as to the rights claimed. Claims registered under this registry
    46  and information regarding such successors in interest  to  the  deceased
    47  individual's right of publicity shall be public records.
    48    5.  Upon  receipt  and  after  filing of any document pursuant to this
    49  section, the secretary shall post the document  along  with  the  entire
    50  registry  of  persons  claiming  to  be  successors  in  interest to the
    51  deceased individual's right of publicity or a registered licensee  under
    52  this  section  upon  an  internet website developed by the secretary for
    53  such purpose. The secretary may reproduce by digital or other means  any
    54  of the filings or documents and destroy the original filing or document.
        S. 5857--B                          4
     1    6. The secretary is authorized to promulgate such regulations as he or
     2  she  shall  deem  necessary  to implement the provisions of subdivisions
     3  four and five of this section.
     4    7.  No  action  shall  be brought under the provisions of this article
     5  pertaining to the right of publicity by reason of any use of a  deceased
     6  individual's  right  of  publicity occurring after the expiration of the
     7  duration of the right of publicity as provided  in  section  fifty-g  of
     8  this article. Furthermore, no action may be brought under the provisions
     9  of  this article pertaining to the right of publicity for a violation of
    10  a deceased individual's right of publicity unless the  claim  is  regis-
    11  tered.  However,  an  action may be brought under the provisions of this
    12  article pertaining to the right  of  publicity  for  a  violation  of  a
    13  deceased individual's right of publicity:
    14    (a)  for  any violation that occurs prior to registration provided the
    15  claim is registered within six months following the individual's  death;
    16  or
    17    (b)  for  any  subsequent publication, manufacturing, distribution, or
    18  sale or use in violation of a deceased individual's right  of  publicity
    19  once a claim has been registered.
    20    8.  If there is a right of publicity registration for a deceased indi-
    21  vidual, any person seeking to license the right  of  publicity  for  the
    22  individual shall have the right to rely upon such registration and post-
    23  ing  and  thereby  presume that the person who has registered and posted
    24  his or her claim on the secretary's  public  internet  website  has  the
    25  right to assign or license the deceased individual's right of publicity.
    26  The  registration and posting of a person's claim to a deceased individ-
    27  ual's right of publicity on  the  secretary's  public  internet  website
    28  shall  constitute a defense to an action brought under the provisions of
    29  this article pertaining to the right of publicity.
    30    9. Any person who knowingly makes a false or fraudulent representation
    31  in connection with a registration with  the  secretary  to  establish  a
    32  claim  to  a  deceased  individual's right of publicity pursuant to this
    33  section shall be liable for any damages sustained as  a  result  of  the
    34  false  or  fraudulent registration as determined by a court of competent
    35  jurisdiction.
    36    10. Any document filed with the secretary, whether such document is  a
    37  reproduction  or  an  original, may be destroyed by the secretary forty-
    38  seven years after the death of the individual whose right  of  publicity
    39  has  been  registered  therein.  The secretary shall remove any document
    40  registered and posted upon the public internet website upon showing of a
    41  court order from a court of competent jurisdiction that a person  claim-
    42  ing  to  be  a successor in interest to a deceased individual's right of
    43  publicity has wrongfully registered such claim.
    44    § 50-i. No abrogation of rights and remedies. Nothing contained in the
    45  provisions of this article related to the right of  publicity  shall  be
    46  deemed  to  abrogate or otherwise limit any rights or remedies otherwise
    47  conferred by federal or state law.
    48    § 4. Section 51 of the civil rights law, as amended by chapter 674  of
    49  the laws of 1995, is amended to read as follows:
    50    §  51.  Action  for injunction and for damages. 1. Applicability.  The
    51  provisions of this article related to the right or privacy and the right
    52  of publicity apply to an act or event that occurs within New York.
    53    2. Right of publicity exceptions. For purposes of the right of public-
    54  ity, consent for use  of  another  individual's  persona  shall  not  be
    55  required, except as otherwise provided in subdivisions three and four of
    56  this section, when used in connection with the following:
        S. 5857--B                          5
     1    (a)  news, public affairs or sports broadcast, including the promotion
     2  of and advertising for a public affairs or sports broadcast, an  account
     3  of public interest or a political campaign;
     4    (b) in:
     5    (i)  a  play,  book,  magazine, newspaper, musical composition, visual
     6  work, work of art, audiovisual work, radio or television program  if  it
     7  is  fictional  or nonfictional entertainment, or a dramatic, literary or
     8  musical work;
     9    (ii) a work of political, public interest or newsworthy value  includ-
    10  ing a comment, criticism, parody, satire or a transformative creation of
    11  a work of authorship; or
    12    (iii) an advertisement or commercial announcement for any of the works
    13  described in paragraph (a) of this subdivision or this paragraph; or
    14    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
    15  stations licensed by the federal communications commission of the United
    16  States, or by not-for-profit advocacy organizations if the  use  is  for
    17  commentary or criticism;
    18    (d)  use  of the right of publicity of a deceased individual where the
    19  licensee or successor in interest has failed  to  register  and  post  a
    20  claim of right under section fifty-h of this article, with the exception
    21  of the safe harbor period listed in subdivision seven of section fifty-h
    22  of this article, until such time as a claim of right has been registered
    23  and posted as required under such section.
    24    (e)  Nothing  in this section relating to the right of publicity shall
    25  be deemed to abrogate or otherwise  limit  other  rights  or  exceptions
    26  otherwise  conferred by state and federal case law interpretations as to
    27  the applicability of sections fifty and fifty-one of this  article  made
    28  prior  to  the effective date of the chapter of the laws of two thousand
    29  eighteen which amended this section.
    30    3. Digital replica for purposes of trade in an  expressive  work.  (a)
    31  Use of a digital replica, as defined in subdivision two of section fifty
    32  of  this  article, of an individual shall constitute a violation if done
    33  without the consent of the individual if the use is:
    34    (i) in a scripted audiovisual or audio work, or in a live  performance
    35  of  a  dramatic  work,  in a manner that is intended to create, and that
    36  does create, the clear impression that the individual represented by the
    37  digital replica is performing, the activity  for  which  he  or  she  is
    38  known, in the role of a fictional character; or
    39    (ii)  in a performance of a musical work, in a manner that is intended
    40  to create, and that does create, the clear impression that the  individ-
    41  ual  represented  by the digital replica is performing, the activity for
    42  which he or she is known, in such musical work; or
    43    (iii) in an audiovisual work, in a manner that is intended to  create,
    44  and  that does create, the clear impression that the athlete represented
    45  by the digital replica is engaging in an athletic activity for which  he
    46  or she is known.
    47    (b)  Consent  for  the  use of the digital replica of an individual as
    48  provided in the provisions of this article shall not be required if such
    49  use is:
    50    (i) for purposes of parody, satire, commentary, or criticism;
    51    (ii in a work of political, public interest, or newsworthy  value,  or
    52  similar  work,  including  a  documentary,  regardless  of the degree of
    53  fictionalization in the work; or
    54    (iii) de minimis or incidental.
    55    4. Digital replica use in a pornographic  work.    Use  of  a  digital
    56  replica  of  an  individual shall constitute a violation if done without
        S. 5857--B                          6
     1  the consent of the individual if the use is  in  an  audiovisual  porno-
     2  graphic work in a manner that is intended to create and that does create
     3  the impression that the individual represented by the digital replica is
     4  performing.    Nothing  in this section shall limit any other rights the
     5  individual may have against any  party  relating  to  such  pornographic
     6  work.
     7    5.  Limited  immunity.  The owners or employees of any medium used for
     8  advertising including, but not limited to, newspapers, magazines,  radio
     9  and  television  networks  and stations, cable television systems, bill-
    10  boards, and transit advertising, who make unauthorized use of  an  indi-
    11  vidual's  persona  for  the purpose of advertising or trade shall not be
    12  liable for such use under the provisions of this article  unless  it  is
    13  established  that  such owner or employee had knowledge of the unauthor-
    14  ized use, through presence or inclusion, of the individual's persona  in
    15  such advertisement or publication.
    16    6.  Action  for  injunction  and  for damages. Any person whose [name,
    17  portrait, picture or voice] persona is used within this state for adver-
    18  tising purposes [or], for the purposes  of  trade  without  the  written
    19  consent  first  obtained  as [above] provided [may] in the provisions of
    20  this article is entitled to maintain an equitable action in the  supreme
    21  court  of  this state against the person[, firm or corporation] so using
    22  his [name, portrait, picture or voice] or her persona,  to  prevent  and
    23  restrain  the  use thereof; and may also sue and recover damages for any
    24  injuries sustained including an amount equal to  the  greater  of  seven
    25  hundred  fifty dollars or compensatory damages by reason of such use and
    26  if  the  defendant  shall  have  knowingly  used  such  person's  [name,
    27  portrait,  picture  or  voice] persona in such manner as is forbidden or
    28  declared to be unlawful by [section fifty] the provisions of this  arti-
    29  cle  relating  to  the  right  of privacy or the right of publicity, the
    30  [jury] finder of fact, in its discretion, may award  exemplary  damages.
    31  [But  nothing]  A violation of an individual's right of privacy or right
    32  of publicity may occur without regard to whether the use or activity  is
    33  for profit or not-for-profit.
    34    7.  No  defense.  It  shall  not constitute a defense to an action for
    35  violation of an individual's right of privacy or right of publicity that
    36  such violation includes more than one individual.
    37    8. Use and transfer.  Nothing contained in this article  shall  be  so
    38  construed  as to prevent any [person, firm or corporation] individual or
    39  person from selling or otherwise transferring  any  material  containing
    40  such  [name,  portrait,  picture or voice] persona in whatever medium to
    41  any user of such [name, portrait, picture or voice] persona, or  to  any
    42  third  party for sale or transfer directly or indirectly to such a user,
    43  for use in a manner lawful under this article[; nothing].
    44    9. Photographers. Nothing  contained  in  this  article  shall  be  so
    45  construed  as  to  prevent any person[, firm or corporation,] practicing
    46  the profession of photography, from exhibiting [in or about his  or  its
    47  establishment]  or  displaying,  including  in a gallery or on an online
    48  portfolio specimens of the work of such [establishment, unless the  same
    49  is  continued  by  such person, firm or corporation after written notice
    50  objecting thereto has been given by the person portrayed;  and  nothing]
    51  photographer, or from making specimens of the work available for licens-
    52  ing  purposes  in so far as the licensed use does not violate this arti-
    53  cle. A photographer shall not be liable if the use of the photograph was
    54  not authorized by the photographer.
    55    10. Manufacturers, writers, composers and artists.  Nothing  contained
    56  in this article shall be so construed as to prevent any person[, firm or
        S. 5857--B                          7

     1  corporation] from using the [name, portrait, picture or voice of] perso-
     2  na  owned  by  any  manufacturer or dealer in connection with the goods,
     3  wares and merchandise manufactured, produced or dealt in  by  [him]  the
     4  manufacturer  which  [he]  has been sold or disposed of with such [name,
     5  portrait, picture or voice] persona used  in  connection  therewith;  or
     6  from using the [name, portrait, picture or voice] persona of any author,
     7  composer  or  artist  in connection with his or her literary, musical or
     8  artistic productions which he or she has sold or disposed of  with  such
     9  [name, portrait, picture or voice] persona used in connection therewith.
    10    11.  Copyright  owners of a sound recording. Nothing contained in this
    11  section shall be construed to prohibit the copyright owner  of  a  sound
    12  recording from disposing of, dealing in, licensing or selling that sound
    13  recording  to any party, if the right to dispose of, deal in, license or
    14  sell such sound recording has been conferred by contract or other  writ-
    15  ten document by such living person or the holder of such right. [Nothing
    16  contained  in  the  foregoing  sentence  shall  be deemed to abrogate or
    17  otherwise limit any rights or remedies otherwise  conferred  by  federal
    18  law or state law.]
    19    12.  Termination  of  post  mortem  right of publicity. Nothing in the
    20  provisions of this article pertaining to the right of publicity shall be
    21  construed as prohibiting the use of the deceased individual's  right  of
    22  publicity  that occurs after the expiration of forty years following his
    23  or her death.   Nor shall anything in the  provisions  of  this  article
    24  pertaining  to the right of publicity be construed as creating liability
    25  or giving rise to any remedy for any actions or  conduct  involving  the
    26  use of a deceased individual's right of publicity that occurred prior to
    27  the  effective  date of the chapter of the laws of two thousand eighteen
    28  which amended this section.
    29    13. Statute of limitations. Actions brought under  the  provisions  of
    30  this  article  pertaining  to  the right of publicity shall be commenced
    31  within one year of the date of discovery of the injury to the  plaintiff
    32  or  from  the  date  through  the  exercise of due diligence such injury
    33  should have been discovered by the plaintiff, whichever is earlier.
    34    § 5. The section heading and subdivision 3 of section 215 of the civil
    35  practice law and rules are amended to read as follows:
    36    Actions to be commenced within one year: against sheriff,  coroner  or
    37  constable; for escape of prisoner; for assault, battery, false imprison-
    38  ment, malicious prosecution, libel or slander; for violation of right of
    39  privacy  or  the  right  of publicity; for penalty given to informer; on
    40  arbitration award.
    41    3. an action to recover damages for assault, battery, false  imprison-
    42  ment, malicious prosecution, libel, slander, false words causing special
    43  damages,  or a violation of the right of privacy or the right of public-
    44  ity under [section fifty-one] article five of the civil rights law;
    45    § 6. Severability clause. If any clause, sentence, paragraph, subdivi-
    46  sion, section or part of this act shall be  adjudged  by  any  court  of
    47  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    48  impair, or invalidate the remainder thereof, but shall  be  confined  in
    49  its  operation  to the clause, sentence, paragraph, subdivision, section
    50  or part thereof directly involved in the controversy in which such judg-
    51  ment shall have been rendered. It is hereby declared to be the intent of
    52  the legislature that this act would  have  been  enacted  even  if  such
    53  invalid provisions had not been included herein.
    54    § 7. This act shall take effect on the one hundred eightieth day after
    55  it  shall  have  become a law, and shall apply to all living individuals
    56  and deceased individuals who died on or after such date.