An Act concerning certain unauthorized commercial uses of a person's identity or likeness and designated as the "Commercial Identity and Likeness Protection Act," and supplementing Title 2A of the New Jersey Statutes.

Be It Enacted by the Senate and General Assembly of the State of New Jersey:

1. a. The right of enjoyment of one's own identity, recognized under New Jersey common law and often referred to as the right of publicity, is continued by this act. As specified in this act, the right protects from commercial use a natural person's name, voice, signature, photograph, identity, identifiable physical attribute or other characteristic, or likeness in any manner, including any aural or visual likeness, unless consented to by the person.

b. This right is recognized as a property right, giving a natural person all protections and enjoyments associated with that right concerning the person's own identity.

c. (1) This right may be temporarily licensed or transferred, in whole or in part, by contract or by means of trust or testamentary instrument, by either that person or the person's successor in interest in whom the right has vested under this act, and may be so licensed or transferred before and after the death of the person.

(2) The disposition of a person's right of enjoyment of identity by means of a testamentary instrument may be accomplished without an express provision in that instrument. In the absence of an express disposition in the testamentary instrument, a provision in the instrument that provides for the disposition of the residue of a deceased person's assets, without specific reference to the right of enjoyment of identity, shall be deemed effective to dispose of the person's right as recognized and continued by this act.

d. Upon the death of a person, that person's right of enjoyment of identity shall transfer and vest, except as licensed or transferred in whole or in part prior to death, or pursuant to a testamentary instrument as set forth in subsection c. of this section, as follows:

(1) to the person's surviving spouse or civil union partner, except that the surviving spouse or partner shall only obtain one-half interest in the right if, in addition, there is any surviving child or grandchild of the person, who also obtains one-half interest in the right pursuant to paragraph (2) of this subsection;

(2) to the person's surviving child or children, and any surviving grandchild of any deceased child, in equal parts, except that these children and grandchildren shall only obtain one-half interest in the right if, in addition, there is a surviving spouse or civil union partner, who also obtains one-half interest in the right pursuant to paragraph (1) of this subsection; or

(3) to the person's surviving parent, or parents in equal parts, if the person has no surviving spouse or civil union partner and no surviving child or grandchild as set forth in paragraphs (1) and (2) of this subsection.

e. (1) A person's right of enjoyment of identity shall survive for 70 years following the person's death, unless the person failed to dispose of this right, in whole or in part, prior to death or pursuant to a testamentary instrument and the person has no surviving spouse or civil union partner, surviving child or grandchild, or surviving parent to whom the right may transfer and vest as set forth in subsection d. of this section, in which case the person's right shall instead terminate at death.

(2) With respect to any person who died prior to the effective date of this act, this right shall be recognized and enforceable under this act so long as the death occurred less than 70 years next preceding the effective date.

f. If a person's right of enjoyment of identity is licensed or transferred, that licensee or successor in interest, other than a surviving spouse or civil union partner, surviving child or grandchild, or surviving parent to whom the right transferred and vested in accordance with subsection d. of this section, shall be registered with the Secretary of State in order to enforce any protections and enjoyments associated with the licensing or transferring of that right.

(1) The licensee or successor in interest to a person's right of enjoyment of identity shall register with the Secretary of State on a form prescribed by the secretary by regulation. The secretary may impose a fee associated with this registration. The registration form shall include the name and address of the licensee or successor in interest, the basis for being the licensee or successor in interest, the identity of the person being licensed or transferred and any specific interest or interests associated with the license or transfer. Whenever the licensed or transferred right of enjoyment of identity involves a deceased person, the form shall also indicate the date of that person's death.

(2) The registration form shall be considered a public record under the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.). In addition, the Secretary of State shall make available on the Department of State's Internet website copies of all licensee and successor in interest registration forms filed with the secretary, or alternatively all information contained in these forms, as deemed appropriate by the secretary in order to ensure sufficient public notice as to each licensee or successor in interest and the specific interest or interests so registered.

2. a. Concerning the right of enjoyment of one's own identity, except as provided in subsection c. of this section, any person who, without prior consent, uses a natural person's name, voice, signature, photograph, identity, identifiable physical attribute or other characteristic, or likeness in any manner, including any aural or visual likeness, on or in a product, merchandise, or good, or for purposes of advertising or selling, or soliciting purchases of, a product, merchandise, good, or service, whether that natural person is alive or deceased, unless deceased more than 70 years, shall be liable for any damages resulting from the unauthorized use sustained by the person or the successor in interest to that person's identity and likeness.

For purposes of this section, "photograph" includes any photographic reproduction, still or moving, or any video or video-producing data transmission, live or prerecorded, of any natural person, or that person's physical attribute or other characteristic, readily identifiable therein. A natural person, or person's physical attribute or other characteristic, shall be deemed to be readily identifiable within a photograph on the basis of whether the identity or likeness of that person, or person's physical attribute or other characteristic, can be reasonably determined by someone viewing the photograph either unaided or aided only by means of eye glasses, contact lenses, or other corrective ophthalmic appliances.

b. (1) A person who violates the provisions of this section shall be liable to the injured person or successor in interest in an amount equal to (a) $1,000, or (b) the actual damages suffered by the injured person or successor in interest as a result of the unauthorized use of the person's identity or likeness, plus any profits from the unauthorized use attributable to that use not otherwise computed with the actual damages, whichever amount is greater, and may be liable for an award of punitive damages to the injured party.

(2) The prevailing party in any action brought for a violation of the provisions of this section shall be entitled to attorney's fees and costs concerning that action.

(3) The remedies provided for in this subsection shall be in addition to, and not in lieu of, any other action, injunctive relief, or any other remedy available at law.

A violation of the provisions of this section shall be actionable in this State if either the conduct of the person causing the injury, or the damages suffered by the injured person or successor in interest, occurs within this State.

c. Exceptions to liability:

(1) The use, without prior consent, of a natural person's identity or likeness shall not constitute a violation for which the person or successor in interest to that person's identity and likeness is entitled to damages if it is:

(a) a use in any news, public affairs, or sports broadcast or account, or any political campaign;

(b) a use in any play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, Internet broadcast, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these, if the work is fictional or nonfictional entertainment, or a dramatic, literary, or musical work. However, this exception shall not apply to the use of a person's identity or likeness in one of these works for the purposes of advertising or selling, or soliciting purchases of, a service, or product, merchandise, or good other than one of these works;

(c) a use in any commercial medium, solely because the material containing the use of the identity or likeness is commercially sponsored or contains advertising for a product, merchandise, good, or service. However, this use shall not constitute an exception from liability if the person or successor in interest proves that the use of the person's identity or likeness is so directly connected with the commercial sponsorship or advertising as to constitute a use for which consent was required.

(2) Nothing in this section shall establish liability for the owner, employee, or agent of any commercial medium used for the advertising or selling, or soliciting purchases of, a product, merchandise, good, or service, except when the owner, employee, or agent has actual knowledge of the unauthorized use of a natural person's identity or likeness in connection with the act of advertising, selling, or soliciting that is published or disseminated by that commercial medium.

(3) Nothing in this section shall establish liability for any use, without prior consent, of a natural person's identity or likeness, if the claimant is a licensee or successor in interest to that person's identity and likeness, but did not register in that capacity with the Secretary of State as required by subsection f. of section 1 of this act.

3. This act shall take effect on the first day of the fourth month next following enactment, except that the Secretary of State may take any anticipatory administrative action in advance thereof as shall be necessary for the implementation of this act

STATEMENT

This bill, designated the "Commercial Identity and Likeness Protection Act," would recognize and codify protections concerning the right of enjoyment of one's own identity, often referred to as the right of publicity under the common law. In accordance with the bill, the right would protect from commercial use a natural person's name, voice, signature, photograph, identity, identifiable physical attribute or other characteristic, or likeness in any manner, including any aural or visual likeness, unless consented to by the person.

The right would be recognized as a property right, giving a natural person all protections and enjoyments associated with that right concerning the person's own identity. This right could therefore be temporarily licensed or transferred, in whole or in part, by contract or by means of trust or testamentary instrument, by either the person or the person's successor in interest in whom the right has vested, and could be so licensed or transferred before and after the death of the person.

Upon the death of a person, that person's right of enjoyment of identity would vest, except as licensed or transferred in whole or in part prior to death, or pursuant to a testamentary instrument, as follows:

(1) to the person's surviving spouse or civil union partner, except that the surviving spouse or partner would only obtain one-half interest in the right if, in addition, there was any surviving child or grandchild of the person, who would also obtain one-half interest in the right;

(2) to the person's surviving child or children, and any surviving grandchild of any deceased child, in equal parts, except that these children and grandchildren would only obtain one-half interest in the right if, in addition, there was a surviving spouse or civil union partner, who, as explained above, would also obtain one-half interest in the right; or

(3) to the person's surviving parent, or parents in equal parts, if the person has no surviving spouse or civil union partner, and no surviving child or grandchild.

A person's right of enjoyment of identity would survive for 70 years following the person's death, unless the person failed to dispose of this right, in whole or in part, prior to death or pursuant to a testamentary instrument and the person had no surviving spouse or civil union partner, surviving child or grandchild, or surviving parent to whom the right may transfer and vest, in which case the person's right would instead terminate at death. With respect to any person who died prior to the effective date of the bill, this right would be recognized and enforceable under the bill so long as the death occurred less than 70 years next preceding its effective date.

If a person's right of enjoyment of identity was licensed or transferred, that licensee or successor in interest, other than a surviving spouse or civil union partner, surviving child or grandchild, or surviving parent to whom the right transferred and vested in accordance with the bill's provisions, would need to register with the Secretary of State in order to enforce any protections and enjoyments associated with the licensing or transferring of that right.

Any such licensee or successor in interest would need to register with the Secretary of State on a form prescribed by the secretary by regulation. The secretary could impose a fee associated with this registration. The registration form would include the name and address of the licensee or successor in interest, the basis for being the licensee or successor in interest, the identity of the person being licensed or transferred and any specific interest or interests associated with that license or transfer. Also, whenever the right of enjoyment of identity involved a deceased person, the form would additionally indicate the date of that person's death.

The registration form would be considered a public record under the provisions of P.L.1963, c.73 (C.47:1A-1 et seq.). Additionally, the Secretary of State would make available on the Department of State's Internet website copies of all licensee and successor in interest registration forms filed with the secretary, or alternatively all information contained in these forms, as deemed appropriate by the secretary in order to ensure sufficient public notice as to each licensee or successor in interest and the specific interest or interests so registered.

Concerning actionable claims regarding the right of enjoyment of one's own identity, any person who, without prior consent, used a natural person's name, voice, signature, photograph, identity, identifiable physical attribute or other characteristic, or likeness in any manner, including any aural or visual likeness, on or in a product, merchandise, or good, or for purposes of advertising or selling, or soliciting purchases of, a product, merchandise, good, or service, whether that natural person was alive or deceased, unless deceased more than 70 years, would be liable for any damages resulting from the unauthorized use sustained by the person or the successor in interest to that person's identity and likeness.

A person who violated the bill's provisions would be liable to the injured person or successor in interest in an amount equal to either $1,000, or the actual damages suffered by the injured person or successor in interest, plus any profits from the unauthorized use attributable to that use not otherwise computed with the actual damages, whichever amount is greater. The person could also be liable for an award of punitive damages to the injured party.

A violation would be actionable in this State if either the conduct of the person causing the injury, or the damages suffered by the injured person or successor in interest, occurred within this State.

The bill would not consider the use of a person's identity or likeness without consent to be a violation if this use was done in a any news, public affairs, or sports broadcast or account, or any political campaign.

It would also not be a violation if used in any play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, Internet broadcast, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these, if the work is fictional or nonfictional entertainment, or a dramatic, literary, or musical work. However, this exception would not apply to the use of a person's identity or likeness in one of these works for the purposes of advertising or selling, or soliciting purchases of, a service, or product, merchandise, or good other than one of these works.

Finally, it would not be a violation if a person's identity or likeness was used in any commercial medium, solely because the material containing the use of that identity or likeness was commercially sponsored or contained advertising for a product, merchandise, good, or service. However, such use would not constitute an exception from liability if the person or successor in interest proves that the use of the person's identity or likeness was so directly connected with the commercial sponsorship or advertising as to constitute a use for which consent was required by the bill.

As an additional exception on liability, nothing in the bill would establish a violation for the owner, employee, or agent of any commercial medium used for the advertising or selling, or soliciting purchases of, a product, merchandise, good, or service, except when the owner, employee, or agent had actual knowledge of the unauthorized use of a natural person's identity or likeness in connection with the act of advertising, selling, or soliciting that was published or disseminated by that commercial medium.

The bill would take effect on the first day of the fourth month next following enactment, except that the Secretary of State could take any anticipatory administrative action in advance thereof as necessary for its implementation.