Bill Text: NY S05959 | 2019-2020 | General Assembly | Introduced
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 7-0)
Status: (Passed) 2020-11-30 - SIGNED CHAP.304 [S05959 Detail]
Download: New_York-2019-S05959-Introduced.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 7-0)
Status: (Passed) 2020-11-30 - SIGNED CHAP.304 [S05959 Detail]
Download: New_York-2019-S05959-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 5959 2019-2020 Regular Sessions IN SENATE May 16, 2019 ___________ Introduced by Sen. SAVINO -- read twice and ordered printed, and when printed to be committed to the Committee on Codes 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. 20 6. "Expressive sound recording or audiovisual work" includes an audio- 21 book, interactive game, live performance, movie, radio or television EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD05914-03-9S. 5959 2 1 program, song, or like media if it is fictional, nonfictional, or 2 musical entertainment. 3 7. "Individual" means a natural person. 4 8. "Name" means the actual or assumed name, or nickname, of a living 5 or deceased individual that identifies that individual. 6 9. "Nude" means the realistic display of genitals, pubic area, anus, a 7 female's post-pubescent nipple or areola, including the use of technolo- 8 gy to depict the body parts of another as being those of the individual 9 or to impose nude body parts onto the individual. 10 10. "Person" means any natural person, firm, association, partnership, 11 corporation, company, syndicate, receiver, common law trust, conserva- 12 tor, statutory trust, or any other entity by whatever name known or 13 however organized, formed or created, and includes not-for-profit corpo- 14 rations, associations, educational and religious institutions, political 15 parties, and community, civic or other organizations. 16 11. "Persona" means, individually or collectively, the name, portrait 17 or picture, voice, or signature of an individual. 18 12. "Right of privacy" means a personal right, which protects against 19 the unauthorized use of a living individual's name, portrait or picture, 20 voice, or signature for advertising purposes or purposes of trade with- 21 out written consent and the mental, emotional, or reputational injuries 22 sustained, extinguished upon death. 23 13. "Right of publicity" means an independent property right, derived 24 from and independent of the right of privacy, which protects the unau- 25 thorized use of a living or deceased individual's name, portrait or 26 picture, voice, or signature for advertising purposes or purposes of 27 trade without written consent and the pecuniary loss sustained. 28 14. "Sexual acts" means masturbation, sexual intercourse, oral or anal 29 sexual conduct, penetration of, or with, an object, bestiality, or 30 transfer of semen onto the individual. 31 15. "Signature" means a handwritten or otherwise legally binding form 32 of an individual's name, written or authorized by that individual, which 33 distinguishes the individual from all other individuals. 34 16. "Visual work" includes: 35 a. A visual rendition including, but not limited to, a painting, draw- 36 ing, video, sculpture, mosaic, or photograph; or 37 b. A work of calligraphy; or 38 c. A work of graphic art including, but not limited to, an etching, 39 lithograph, serigraph, or offset print; or 40 d. A craft work in materials including, but not limited to, a collage, 41 assemblage, or work consisting of any combination of paragraphs a, b and 42 c of this subdivision. 43 § 2. Section 50-f of the civil rights law, as renumbered by section 44 one of this act, is amended to read as follows: 45 § 50-f. Right of privacy and right of publicity. [A person, firm or46corporation that uses for advertising purposes, or for the purposes of47trade, the name, portrait or picture of any living person without having48first obtained the written consent of such person, or if a minor of his49or her parent or guardian, is guilty of a misdemeanor.] 1. For the 50 purposes of the right of privacy, a living individual's persona shall 51 not be used for advertising purposes or purposes of trade without 52 obtaining the written consent of such person, or if a minor of his or 53 her parent or guardian. A contract to create a sexually explicit 54 digital depiction, as defined by subdivision four of section fifty-one 55 of this article must include a general description of the depiction and 56 the expressive audiovisual work in which it will be incorporated. AnS. 5959 3 1 individual has three business days to revoke written consent for a sexu- 2 ally explicit digital depiction unless: 3 (a) the individual was given no less than seventy-two hours to review 4 the terms of consent prior to signing it; or 5 (b) the individual's authorized representative provided written 6 approval of the terms of consent. 7 The written notice of revocation shall be sent to the person in person 8 or by sending a revocation by mail, courier, electronic transmission or 9 facsimile to the person's last known address. An individual may stipu- 10 late in a written contract that if in executing a future contract, the 11 person fails to satisfy at least one of the consent requirements 12 provided for in this section, notice of a revocation shall be considered 13 delivered according to this section. 14 2. For the purposes of the right of publicity, a living or deceased 15 individual's persona is personal property, freely transferable or 16 descendible, in whole or in part by contract or by means of any trust or 17 testamentary instrument, whether such contract, trust or testamentary 18 instrument was entered into or executed before or after the effective 19 date of this subdivision. Such right of publicity shall not be used for 20 advertising purposes or the purposes of trade without obtaining the 21 written consent of the individual, his or her successors or assigns as 22 provided for in the provisions of this article pertaining to the right 23 of publicity. In the case of a minor, written consent must first be 24 obtained of his or her parent or guardian for the purposes of an exclu- 25 sive or non-exclusive license as limited by section 35.03 of the arts 26 and cultural affairs law. A parent or guardian is prohibited from 27 assigning a minor's right of publicity, and such assignments shall be 28 unenforceable. Nothing in this section shall limit any other rights such 29 minor may have. 30 § 3. The civil rights law is amended by adding three new sections 31 50-g, 50-h and 50-i to read as follows: 32 § 50-g. Duration of an individual's right of publicity. Every individ- 33 ual's right of publicity shall continue to exist for forty years after 34 his or her death, and does not expire upon the death of the individual. 35 § 50-h. Methods of transfer and conveyance. 1. The rights recognized 36 under the provisions of this article pertaining to the right of public- 37 ity are freely transferable and descendible, in whole or in part, by the 38 following: 39 (a) contract; 40 (b) license; 41 (c) gift; 42 (d) trust; 43 (e) testamentary document. The rights shall vest in the persons enti- 44 tled to the right of publicity under the testamentary instrument of the 45 deceased individual effective as of the date of that individual's death. 46 In the absence of an express transfer in a testamentary instrument of 47 the deceased individual's right of publicity, a provision in the testa- 48 mentary instrument that provides for the disposition of the residue of 49 the deceased individual's assets shall be effective to transfer the 50 rights recognized under this article in accordance with the terms of 51 that provision; and 52 (f) intestate succession. The right to publicity of an individual 53 dying intestate shall be distributed under the laws of intestate 54 succession, and the rights and remedies of this article may be exercised 55 and enforced by a person or persons who possess at least a fifty-one 56 percent interest of the individual's right of publicity. Such personsS. 5959 4 1 shall make a proportional accounting to, and shall act at all times in 2 good faith with respect to, any other person in whom the rights being 3 enforced have vested. 4 2. The rights established by the provisions of this article pertaining 5 to the right of publicity shall also be freely transferable or descendi- 6 ble by any subsequent owner of the deceased individual's right to 7 publicity as recognized by this article. Nothing in the provisions of 8 this article pertaining to the right of publicity shall be construed to 9 render invalid or unenforceable any contract entered into by a deceased 10 individual during his or her lifetime by which the deceased individual 11 assigned the rights, in whole or in part, to use his or her right of 12 publicity as defined in this article. 13 3. If any deceased individual does not transfer his or her rights 14 under this section by contract, license, gift, trust or testamentary 15 document, and there are no surviving persons as described in paragraph 16 (f) of subdivision one of this section, then the property rights associ- 17 ated with the deceased individual's right of publicity shall terminate. 18 4. Upon the tenth anniversary of the deceased individual's death, any 19 person claiming to be a successor in interest to the right of publicity 20 of a deceased individual under this article or a licensee of a deceased 21 individual's right of publicity shall register that claim with the 22 secretary on a form prescribed by the secretary and upon payment of a 23 fee of one hundred dollars. A rights holder may voluntarily register 24 the claim at any time prior to the ten-year anniversary of the deceased 25 individual's death. The form shall include the name and date of death 26 of the deceased individual, the name and address of the claimant, the 27 basis of the claim, and a sworn affidavit under penalty of perjury as to 28 the rights claimed. Claims registered under this registry and informa- 29 tion regarding such successors in interest to the deceased individual's 30 right of publicity 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 ten years 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-S. 5959 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, with the exception 55 of the safe harbor period listed in subdivision seven of section fifty-hS. 5959 6 1 of this article, until such time as a claim of right has been registered 2 and posted as required under such section. 3 (e) Nothing in this section relating to the right of publicity shall 4 be deemed to abrogate or otherwise limit other rights or exceptions 5 otherwise conferred by state and federal case law interpretations as to 6 the applicability of this section and section fifty of this article made 7 prior to the effective date of the chapter of the laws of two thousand 8 nineteen which amended this section. 9 3. Digital replica for purposes of trade in an expressive work. (a) 10 Use of a digital replica, as defined in subdivision three of section 11 fifty of this article, of an individual shall constitute a violation if 12 done without the consent of the individual if the use is: 13 (i) in an expressive audiovisual or audio work or sound recording, or 14 in a live performance of a dramatic work, in a manner that is intended 15 to create, and that does create, the clear impression that the profes- 16 sional actor represented by the digital replica is performing, the 17 activity for which he or she is known, in the role of a fictional char- 18 acter; or 19 (ii) in an expressive audiovisual or sound recording, or in a live 20 performance of a musical work, in a manner that is intended to create, 21 and that does create, the clear impression that the professional singer, 22 dancer, or musician represented by the digital replica is performing, 23 the activity for which he or she is known, in such musical work; or 24 (iii) in an expressive audiovisual work, in a manner that is intended 25 to create, and that does create, the clear impression that the profes- 26 sional or college athlete represented by the digital replica is engaging 27 in an athletic activity for which he or she is known. 28 (b) Consent for the use of the digital replica of an individual as 29 provided in the provisions of this article shall not be required if such 30 use is: 31 (i) for purposes of parody, satire, commentary, or criticism; 32 (ii) in a work of political, public interest, or newsworthy value, or 33 similar work, including a documentary, regardless of the degree of 34 fictionalization in the work; or 35 (iii) de minimis or incidental. 36 4. Digital replica use in a pornographic work. (a) Use of a digital 37 replica to create sexually explicit material in an expressive audiovis- 38 ual work shall constitute a violation of the right of privacy if the use 39 is intended to depict and does falsely depict an individual as perform- 40 ing in the nude or as engaging in sexual acts they did not perform. 41 (b) Consent shall not be required if such use is: 42 (i) in relation to a matter of legitimate public purpose; or 43 (ii) in a work of political or newsworthy value, or similar work; or 44 (iii) for purposes of commentary or criticism. 45 5. Limited immunity. The owners or employees of any medium used for 46 advertising including, but not limited to, newspapers, magazines, radio 47 and television networks and stations, cable television systems, bill- 48 boards, and transit advertising, who make unauthorized use of an indi- 49 vidual's persona for the purpose of advertising or trade shall not be 50 liable for such use under the provisions of this article unless it is 51 established that such owner or employee had knowledge of the unauthor- 52 ized use, through presence or inclusion, of the individual's persona in 53 such advertisement or publication. 54 6. Actions for injunction and for damages. Any person whose [name,55portrait, picture or voice] persona is used within this state for adver- 56 tising purposes [or], for the purposes of trade without the writtenS. 5959 7 1 consent first obtained as [above] provided [may] in the provisions of 2 this article is entitled to maintain an equitable action in the supreme 3 court of this state against the person[, firm or corporation] so using 4 his [name, portrait, picture or voice] or her persona, to prevent and 5 restrain the use thereof; and may also sue and recover damages for any 6 injuries sustained including an amount equal to the greater of seven 7 hundred fifty dollars or compensatory damages by reason of such use and 8 if the defendant shall have knowingly used such person's [name,9portrait, picture or voice] persona in such manner as is forbidden or 10 declared to be unlawful by [section fifty] the provisions of this arti- 11 cle relating to the right of privacy or the right of publicity, the 12 [jury] finder of fact, in its discretion, may award exemplary damages. 13 [But nothing] A violation of an individual's right of privacy or right 14 of publicity may occur without regard to whether the use or activity is 15 for profit or not-for-profit. 16 7. No defense. It shall not constitute a defense to an action for 17 violation of an individual's right of privacy or right of publicity that 18 such violation includes more than one individual. 19 8. Use and transfer. Nothing contained in this article shall be so 20 construed as to prevent any [person, firm or corporation] individual or 21 person from selling or otherwise transferring any material containing 22 such [name, portrait, picture or voice] persona in whatever medium to 23 any user of such [name, portrait, picture or voice] persona, or to any 24 third party for sale or transfer directly or indirectly to such a user, 25 for use in a manner lawful under this article[; nothing contained in26this article shall be so construed as to prevent any person, firm or27corporation, practicing the profession of photography, from exhibiting28in or about his or its establishment specimens of the work of such29establishment, unless the same is continued by such person, firm or30corporation after written notice objecting thereto has been given by the31person portrayed; and nothing]. 32 9. Visual work. Nothing contained in this article shall be so 33 construed as to prevent any person from exhibiting or displaying visual 34 work, including in a gallery or on an online portfolio specimens of the 35 work or from making the visual work available for licensing purposes in 36 so far as the terms of the sale or license does not permit the user to 37 violate this article. A person shall not be liable if the use of the 38 visual work was not authorized by the person. 39 10. Manufacturers, writers, composers and artists. Nothing contained 40 in this article shall be so construed as to prevent any person[, firm or41corporation] from using the [name, portrait, picture or voice of] perso- 42 na owned by any manufacturer or dealer in connection with the goods, 43 wares and merchandise manufactured, produced or dealt in by [him] the 44 manufacturer which [he] has been sold or disposed of with such [name,45portrait, picture or voice] persona used in connection therewith; or 46 from using the [name, portrait, picture or voice] persona of any author, 47 composer or artist in connection with his or her literary, musical or 48 artistic productions which he or she has sold or disposed of with such 49 [name, portrait, picture or voice] persona used in connection therewith. 50 11. Copyright owners of a sound recording. Nothing contained in this 51 section shall be construed to prohibit the copyright owner of a sound 52 recording from disposing of, dealing in, licensing or selling that sound 53 recording to any party, if the right to dispose of, deal in, license or 54 sell such sound recording has been conferred by contract or other writ- 55 ten document by such living person or the holder of such right. [Nothing56contained in the foregoing sentence shall be deemed to abrogate orS. 5959 8 1otherwise limit any rights or remedies otherwise conferred by federal2law or state law.] 3 12. Termination of post mortem right of publicity. Nothing in the 4 provisions of this article pertaining to the right of publicity shall be 5 construed as prohibiting the use of the deceased individual's right of 6 publicity that occurs after the expiration of forty years following his 7 or her death. Nor shall anything in the provisions of this article 8 pertaining to the right of publicity be construed as creating liability 9 or giving rise to any remedy for any actions or conduct involving the 10 use of a deceased individual's right of publicity that occurred prior to 11 the effective date of the chapter of the laws of two thousand nineteen 12 which amended this section. 13 13. Statute of limitations. Actions brought under the provisions of 14 this article pertaining to the right of publicity shall be commenced 15 within one year of the date of discovery of the injury to the plaintiff 16 or from the date through the exercise of due diligence such injury 17 should have been discovered by the plaintiff, whichever is earlier. 18 § 5. The section heading and subdivision 3 of section 215 of the civil 19 practice law and rules are amended to read as follows: 20 Actions to be commenced within one year: against sheriff, coroner or 21 constable; for escape of prisoner; for assault, battery, false imprison- 22 ment, malicious prosecution, libel or slander; for violation of right of 23 privacy or the right of publicity; for penalty given to informer; on 24 arbitration award. 25 3. an action to recover damages for assault, battery, false imprison- 26 ment, malicious prosecution, libel, slander, false words causing special 27 damages, or a violation of the right of privacy or the right of public- 28 ity under [section fifty-one] article five of the civil rights law; 29 § 6. Subdivision 1 of section 35.03 of the arts and cultural affairs 30 law, paragraph (a) as amended by chapter 411 of the laws of 2013, is 31 amended to read as follows: 32 1. A contract made by an infant or made by a parent or guardian of an 33 infant, or a contract proposed to be so made, under which (a) the infant 34 is to perform or render services as an actor, actress, model, dancer, 35 musician, vocalist or other performing artist, or as a participant or 36 player in professional sports, [or] (b) a person is employed to render 37 services to the infant in connection with such services of the infant or 38 in connection with contracts therefor, or (c) the infant is bound to an 39 exclusive licensing contract beyond twenty-one months for use of their 40 persona for advertising purposes or purposes of trade, as defined by the 41 civil rights law, may be approved by the supreme court or the surro- 42 gate's court as provided in this section where the infant is a resident 43 of this state or the services of the infant are to be performed or 44 rendered in this state. If the contract is so approved the infant may 45 not, either during his minority or upon reaching his majority, disaffirm 46 the contract on the ground of infancy or assert that the parent or guar- 47 dian lacked authority to make the contract. A contract modified, amended 48 or assigned after its approval under this section shall be deemed a new 49 contract. 50 § 7. Severability clause. If any clause, sentence, paragraph, subdivi- 51 sion, section or part of this act shall be adjudged by any court of 52 competent jurisdiction to be invalid, such judgment shall not affect, 53 impair, or invalidate the remainder thereof, but shall be confined in 54 its operation to the clause, sentence, paragraph, subdivision, section 55 or part thereof directly involved in the controversy in which such judg- 56 ment shall have been rendered. It is hereby declared to be the intent ofS. 5959 9 1 the legislature that this act would have been enacted even if such 2 invalid provisions had not been included herein. 3 § 8. This act shall take effect on the one hundred eightieth day after 4 it shall have become a law, and shall apply to all living individuals 5 and deceased individuals who died on or after such date.
