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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________
                                          5857
                               2017-2018 Regular Sessions
                    IN SENATE
                                       May 3, 2017
                                       ___________
        Introduced  by  Sens.  SAVINO, AVELLA -- read twice and ordered printed,
          and when printed to be committed to the Committee on Judiciary
        AN ACT to amend the civil practice law and rules and  the  civil  rights
          law, in relation to the right to privacy and persona rights
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Subdivision 3 of section 215 of the civil practice law  and
     2  rules is amended to read as follows:
     3    3.  an action to recover damages for assault, battery, false imprison-
     4  ment, malicious prosecution, libel, slander, false words causing special
     5  damages[, or a violation of the right of privacy under section fifty-one
     6  of the civil rights law];
     7    § 2. The article heading of article 5  of  the  civil  rights  law  is
     8  amended to read as follows:
     9                     Right of Privacy and Persona Rights
    10    § 3. Section 50 of the civil rights law is amended to read as follows:
    11    §  50. Right of privacy and persona rights.  1. (a) The term "person",
    12  as used in this article, shall mean a person, corporation,  partnership,
    13  limited liability company, limited liability partnership, trust, estate,
    14  or other legal entity.
    15    (b) The term "persona", as used in this article, shall mean a person's
    16  name,  portrait, picture, image, voice, signature, photograph, likeness,
    17  distinctive appearance, gestures or mannerisms.
    18    2. A person[, firm or corporation] that uses for advertising purposes,
    19  or for the purposes of trade, the [name, portrait or picture] persona of
    20  any [living] person, living or deceased, without having  first  obtained
    21  the  written  consent of such person, or if a minor of his or her parent
    22  or guardian, or if such person is deceased  his  or  her  successors  in
    23  interest, is guilty of a misdemeanor.
    24    3.  In regards to the deceased individual, written consent required by
    25  this article shall be exercisable by the person or persons  who  collec-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11325-01-7
        S. 5857                             2
     1  tively  own more than fifty percent of the rights of the deceased perso-
     2  na.  Reasonable reliance upon such written consent shall be a defense to
     3  any action brought under this article.
     4    4. The property right established by this article exists in a deceased
     5  individual  who  died on or after, or within seventy years prior to, the
     6  effective date of this subdivision. The persona rights recognized  under
     7  this section are property rights, freely transferable or descendible, in
     8  whole  or  in  part,  by  contract or by means of any trust or any other
     9  testamentary instrument, and shall exist for  seventy  years  after  the
    10  death of the individual.
    11    5.  In  the  absence of a transfer in a testamentary instrument of the
    12  persona of a  deceased  individual  recognized  under  this  section,  a
    13  provision  in the testamentary instrument that provides for the disposi-
    14  tion of the residue of the deceased individual's assets shall be  effec-
    15  tive  to  transfer  the deceased individual's persona in accordance with
    16  the terms of that provision.
    17    6. Persona  rights  recognized,  under  this  section  relating  to  a
    18  deceased individual who died within seventy years prior to the effective
    19  date  of this article, by a person identified as entitled to inherit the
    20  deceased individual's property under the laws of intestacy applicable to
    21  the estate of the person in effect at the time of the deceased  individ-
    22  ual's  death,  other  than a person who was disinherited by the deceased
    23  individual in a testamentary instrument, shall not be affected, even  if
    24  the  laws  of  intestacy  do  not  otherwise  apply to the estate of the
    25  deceased individual because of a testamentary instrument.
    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. Any person, as
    29  defined in section fifty of this article, whose [name, portrait, picture
    30  or voice] persona, as defined in section fifty of this article, is  used
    31  within  this state for advertising purposes or for the purposes of trade
    32  without the written consent first obtained as [above] provided [may]  in
    33  this  article is entitled to maintain an equitable action in the supreme
    34  court of this state against the person[, firm or corporation]  so  using
    35  his  [name,  portrait,  picture or voice,] or her persona to prevent and
    36  restrain the use thereof; and may also sue and recover damages  for  any
    37  injuries  sustained,  including  an amount equal to the greater of seven
    38  hundred fifty dollars or what would have  been  reasonable  compensation
    39  for  the  use of the persona, by reason of such use and if the defendant
    40  shall have knowingly used such  person's  [name,  portrait,  picture  or
    41  voice] persona in such manner as is forbidden or declared to be unlawful
    42  by section fifty of this article, the jury, in its discretion, may award
    43  exemplary  damages.  [But  nothing]  The  prevailing party in any action
    44  under this section shall also be entitled to attorney's fees and  costs.
    45  Nothing  contained  in  this article shall be so construed as to prevent
    46  any person[, firm or corporation] from selling or otherwise transferring
    47  any material containing such [name, portrait, picture or voice]  persona
    48  in  whatever  medium  to  any  user  of such [name, portrait, picture or
    49  voice] persona, or to any third party for sale or transfer  directly  or
    50  indirectly  to  such a user, for use in a manner lawful under this arti-
    51  cle; nothing contained in this article  shall  be  so  construed  as  to
    52  prevent  any person[, firm or corporation], practicing the profession of
    53  photography, from exhibiting in or about his, her or  its  establishment
    54  specimens  of the work of such establishment, unless the same is contin-
    55  ued by such person[, firm or corporation] after written notice objecting
    56  thereto has been given by the person portrayed  or  their  successor  in
        S. 5857                             3
     1  interest; and nothing contained in this article shall be so construed as
     2  to  prevent  any  [person,  firm  or  corporation] from using the [name,
     3  portrait, picture or voice] persona of any  manufacturer  or  dealer  in
     4  connection  with the goods, wares and merchandise manufactured, produced
     5  or dealt in by him or her which he or she has sold or disposed  of  with
     6  such [name, portrait, picture or voice] persona used in connection ther-
     7  ewith;  or  from using the [name, portrait, picture or voice] persona of
     8  any author, composer or artist in connection with his or  her  literary,
     9  musical  or artistic productions which he or she has sold or disposed of
    10  with such [name, portrait, picture or voice] persona used in  connection
    11  therewith.    Nothing  contained  in  this section shall be construed to
    12  prohibit the copyright owner of a sound  recording  from  disposing  of,
    13  dealing  in,  licensing or selling that sound recording to any party, if
    14  the right to dispose of, deal in, license or sell such  sound  recording
    15  has  been conferred by contract or other written document by such living
    16  person or the holder of such right. Nothing contained in  the  foregoing
    17  sentence  shall  be  deemed to abrogate or otherwise limit any rights or
    18  remedies otherwise conferred by federal law or state law.
    19    2. Actions brought under this article shall be commenced within  three
    20  years  of  the  date of discovery of the injury to the plaintiff or from
    21  the date through the exercise of reasonable diligence such injury should
    22  have been discovered by the plaintiff, whichever is earlier.
    23    § 5. This act shall take effect immediately.