S T A T E O F N E W Y O R K
________________________________________________________________________
7904
2015-2016 Regular Sessions
I N A S S E M B L Y
May 29, 2015
___________
Introduced by M. of A. MORELLE -- read once and referred to the Commit-
tee on Judiciary
AN ACT to amend the civil rights law and the civil practice law and
rules, in relation to 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. The civil rights law is amended by adding a new article 3-A
2 to read as follows:
3 ARTICLE 3-A
4 RIGHT OF PUBLICITY
5 SECTION 30. DEFINITIONS.
6 31. PROPERTY RIGHT ESTABLISHED.
7 32. PROHIBITED USES.
8 33. CONSENT.
9 34. EXEMPTIONS FROM USE RESTRICTIONS.
10 35. APPLICABILITY.
11 36. REMEDIES.
12 37. ENFORCEMENT OF RIGHTS.
13 S 30. DEFINITIONS. AS USED IN THIS ARTICLE:
14 1. "COMMERCIAL PURPOSE" MEANS THE USE OF OR REFERENCE TO ANY ASPECT OF
15 AN INDIVIDUAL'S PERSONA IN ANY OF THE FOLLOWING MANNERS: (A) ON OR IN
16 CONNECTION WITH THE OFFERING FOR SALE OR SALE OF A PLACE, A PRODUCT,
17 MERCHANDISE, GOOD, SERVICE OR BUSINESS; (B) FOR ADVERTISING OR PROMOTING
18 THE PURCHASE OR SALE OF A PRODUCT, MERCHANDISE, GOOD, SERVICE OR BUSI-
19 NESS; AND (C) FOR THE PURPOSE OF PROMOTING TRAVEL.
20 2. "DECEASED INDIVIDUAL" MEANS ANY NATURAL PERSON WHO DIED A DOMICILI-
21 ARY OF THE STATE OF NEW YORK ON OR AFTER, OR WITHIN SEVENTY YEARS PRIOR
22 TO, THE EFFECTIVE DATE OF THIS ARTICLE.
23 3. "PERSON" MEANS A NATURAL PERSON, CORPORATION, PARTNERSHIP, LIMITED
24 LIABILITY CORPORATION, LIMITED LIABILITY PARTNERSHIP, TRUST, ESTATE OR
25 OTHER LEGAL ENTITY.
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11099-02-5
A. 7904 2
1 4. "PERSONA" MEANS THE NAME, PORTRAIT, PICTURE, VOICE, SIGNATURE,
2 PHOTOGRAPH, IMAGE, LIKENESS OR DISTINCTIVE APPEARANCE, GESTURE, MANNER-
3 ISMS OR OTHER INDICIA OF A DECEASED INDIVIDUAL.
4 5. "WORK OF FINE ART" MEANS:
5 (A) A VISUAL RENDITION INCLUDING, BUT NOT LIMITED TO, A PAINTING,
6 DRAWING, SCULPTURE, MOSAIC, VIDEOTAPE, OR PHOTOGRAPH;
7 (B) A WORK OF CALLIGRAPHY;
8 (C) A WORK OF GRAPHIC ART INCLUDING, BUT NOT LIMITED TO, AN ETCHING,
9 LITHOGRAPH, SERIGRAPH, OR OFFSET PRINT;
10 (D) A CRAFT WORK IN MATERIALS INCLUDING, BUT NOT LIMITED TO, CLAY,
11 TEXTILE, FIBER, WOOD, METAL, PLASTIC OR GLASS; OR
12 (E) A WORK IN MIXED MEDIA INCLUDING, BUT NOT LIMITED TO, A COLLAGE,
13 ASSEMBLAGE, OR WORK CONSISTING OF ANY COMBINATION OF PARAGRAPHS (A),
14 (B), (C) OR (D) OF THIS SUBDIVISION.
15 S 31. PROPERTY RIGHT ESTABLISHED. A PROPERTY RIGHT EXISTS IN A
16 DECEASED INDIVIDUAL'S PERSONA FOR SEVENTY YEARS AFTER THE DEATH OF THE
17 INDIVIDUAL.
18 S 32. PROHIBITED USES. NO PERSON SHALL USE FOR COMMERCIAL PURPOSES IN
19 THIS STATE, THE PERSONA OF ANY DECEASED INDIVIDUAL WITHOUT HAVING FIRST
20 OBTAINED THE WRITTEN CONSENT OF THE PERSON OR PERSONS IDENTIFIED IN
21 SECTION THIRTY-THREE OF THIS ARTICLE AND WHO OWNS MORE THAN FIFTY
22 PERCENT OF THE RIGHTS IN THE DECEASED INDIVIDUAL'S PERSONA, OR AS OTHER-
23 WISE PROVIDED IN THIS ARTICLE.
24 S 33. CONSENT. THE WRITTEN CONSENT REQUIRED BY THIS ARTICLE SHALL BE
25 EXERCISABLE BY THE PERSON OR PERSONS WHO COLLECTIVELY OWN MORE THAN
26 FIFTY PERCENT OF THE RIGHTS IN THE DECEASED INDIVIDUAL'S PERSONA IN
27 ACCORDANCE WITH SUBDIVISION ONE OF SECTION THIRTY-FIVE AND SECTION THIR-
28 TY-SIX OF THIS ARTICLE. REASONABLE RELIANCE UPON SUCH WRITTEN CONSENT
29 SHALL BE A DEFENSE IN ANY ACTION BROUGHT UNDER THIS ARTICLE.
30 S 34. EXEMPTIONS FROM USE RESTRICTIONS. THE WRITTEN CONSENT SPECIFIED
31 IN SECTION THIRTY-TWO OF THIS ARTICLE SHALL NOT BE REQUIRED IN
32 CONNECTION WITH THE USE OF A DECEASED INDIVIDUAL'S PERSONA FOR OTHER
33 THAN COMMERCIAL PURPOSES OR FOR A USE THAT IS PERMITTED UNDER THE LAWS
34 OF THE CONSTITUTION OF THE UNITED STATES OR THE STATE OF NEW YORK. FOR
35 PURPOSES OF THIS SECTION, THE FOLLOWING TYPES OF USES REGARDLESS OF
36 LENGTH OR FORMAT, APPEARING IN ANY MEDIUM NOW KNOWN OR HEREAFTER
37 DEVISED, SHALL NOT BE CONSIDERED TO HAVE USED A DECEASED INDIVIDUAL'S
38 PERSONA FOR COMMERCIAL PURPOSES SO LONG AS SUCH USES DO NOT CONSTITUTE
39 AN ADVERTISEMENT, ENDORSEMENT OR SOLICITATION FOR THE SALE OR PURCHASE
40 OF A PRODUCT, ARTICLE OF MERCHANDISE, GOOD OR SERVICE, OTHER THAN FOR
41 THE WORK ITSELF AND THE WORK DOES NOT CONTAIN AN IMAGE OR LIKENESS THAT
42 IS PRIMARILY COMMERCIAL, NOT TRANSFORMATIVE AND IS NOT OTHERWISE
43 PROTECTED BY THE FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION OR
44 NEW YORK STATE CONSTITUTION:
45 1. A PLAY, BOOK, GRAPHIC NOVEL OR OTHER LITERARY OR THEATRICAL WORK;
46 2. A WORK OF POLITICAL OR NEWSWORTHY VALUE CONCERNING PUBLIC INTEREST,
47 INCLUDING A TELEVISION BROADCAST OR AN ARTICLE, EDITORIAL OR COMMENTARY
48 IN A MAGAZINE, NEWSPAPER, NEWSLETTER OR OTHER PERIODICAL;
49 3. AN ORIGINAL MUSICAL COMPOSITION, MUSICAL SOUND RECORDING OR OTHER
50 SIMILAR MUSICAL WORK;
51 4. A DOCUMENTARY, FILM, MOTION PICTURE, TELEVISION PROGRAM OR OTHER
52 SIMILAR AUDIOVISUAL WORK; OR
53 5. AN ORIGINAL WORK OF FINE ART OR A WORK OF FINE ART REPRODUCTION.
54 S 35. APPLICABILITY. 1. THE RIGHTS RECOGNIZED UNDER THIS ARTICLE ARE
55 EXPRESSLY MADE RETROACTIVE AND SHALL BE DEEMED TO HAVE EXISTED AT THE
56 TIME OF DEATH OF ANY INDIVIDUAL WHO DIED WITHIN SEVENTY YEARS PRIOR TO
A. 7904 3
1 THE EFFECTIVE DATE OF THIS ARTICLE AND, EXCEPT WHERE SUCH RIGHTS WERE
2 PASSED, TRANSFERRED OR ASSIGNED PRIOR TO SUCH DECEASED INDIVIDUAL'S
3 DEATH BY MEANS OF ANY WRITTEN CONTRACT OR TRUST INSTRUMENT, SHALL BE
4 DEEMED TO HAVE VESTED IN THE PERSON OR PERSONS ENTITLED TO THESE RIGHTS
5 UNDER THE TESTAMENTARY INSTRUMENT OF THE DECEASED INDIVIDUAL EFFECTIVE
6 AS OF THE DATE OF HIS OR HER DEATH. IN THE ABSENCE OF A TRANSFER IN A
7 TESTAMENTARY INSTRUMENT OF THE PERSONA OF A DECEASED INDIVIDUAL RECOG-
8 NIZED UNDER THIS SECTION, A PROVISION IN THE TESTAMENTARY INSTRUMENT
9 THAT PROVIDES FOR THE DISPOSITION OF THE RESIDUE OF THE DECEASED INDI-
10 VIDUAL'S ASSETS SHALL BE EFFECTIVE TO TRANSFER THE DECEASED INDIVIDUAL'S
11 PERSONA IN ACCORDANCE WITH THE TERMS OF THAT PROVISION. IF NO SUCH
12 CONTRACT, TRUST OR TESTAMENTARY INSTRUMENT EXISTS OR EXISTED AT THE TIME
13 OF THE DEATH OF THE DECEASED INDIVIDUAL, THEN SUCH RIGHTS SHALL BE
14 DEEMED TO HAVE PASSED IN ACCORDANCE WITH THE LAWS OF INTESTACY IN EFFECT
15 AT THE TIME OF THE DECEASED INDIVIDUAL'S DEATH, PROVIDED, HOWEVER, THAT
16 IF THERE ARE OR WERE AT THE TIME OF THE DECEASED INDIVIDUAL'S DEATH NO
17 SURVIVING NATURAL PERSONS TO WHOM SUCH RIGHTS WOULD HAVE PASSED BY
18 INTESTATE SUCCESSION, THEN SUCH RIGHTS SHALL TERMINATE OR SHALL HAVE
19 BEEN DEEMED TO HAVE TERMINATED.
20 2. A DECEASED INDIVIDUAL'S PERSONA IS PERSONAL PROPERTY, FREELY TRANS-
21 FERABLE OR DESCENDABLE, IN WHOLE OR IN PART, BY CONTRACT OR BY MEANS OF
22 ANY TRUST OR TESTAMENTARY INSTRUMENT, WHETHER SUCH CONTRACT, TRUST OR
23 TESTAMENTARY INSTRUMENT WAS ENTERED INTO OR EXECUTED BEFORE OR AFTER THE
24 EFFECTIVE DATE OF THIS ARTICLE.
25 3. NOTHING IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE USE
26 OF THE DECEASED INDIVIDUAL'S PERSONA THAT OCCURS AFTER THE EXPIRATION OF
27 SEVENTY YEARS FOLLOWING THE DEATH OF THAT DECEASED INDIVIDUAL. NOR SHALL
28 ANYTHING IN THIS SECTION BE CONSTRUED AS CREATING LIABILITY OR GIVING
29 RISE TO ANY REMEDY FOR ANY ACTIONS OR CONDUCT INVOLVING THE USE OF A
30 DECEASED INDIVIDUAL'S PERSONA THAT OCCURRED PRIOR TO THE EFFECTIVE DATE
31 OF THIS ARTICLE.
32 4. (A) THIS ARTICLE SHALL NOT PROHIBIT THE USE OF A DECEASED INDIVID-
33 UAL'S PERSONA TO ACCURATELY IDENTIFY THAT DECEASED INDIVIDUAL AS THE
34 AUTHOR OF OR CONTRIBUTOR TO A WORK OR AS THE PERFORMER OF A RECORDED
35 PERFORMANCE, UNDER CIRCUMSTANCES IN WHICH THE WORK OR RECORDED PERFORM-
36 ANCE IS OTHERWISE LAWFULLY USED, REPRODUCED, EXHIBITED OR BROADCAST.
37 (B) THIS ARTICLE SHALL NOT PROHIBIT THE USE OF THE DECEASED INDIVID-
38 UALS' PERSONA TO ACCURATELY IDENTIFY THEIR PLACE OF BURIAL.
39 5. NO PERSON POSSESSING RIGHTS OR TITLE, HOWEVER HELD, IN A WORK
40 ENCOMPASSING ANY ASPECT OR ASPECTS OF A DECEASED INDIVIDUAL'S PERSONA
41 SHALL BE LIABLE UNDER THIS ARTICLE FOR LICENSING OR OTHERWISE AUTHORIZ-
42 ING THE USE OF SUCH WORK BY A THIRD PARTY, OR FOR DISPLAYING IMAGES OF
43 SUCH WORK AS AVAILABLE FOR LICENSE OR SIMILAR USE BY A THIRD PARTY, SO
44 LONG AS SUCH PERSON DOES NOT: (A) KNOW OR INTEND THAT THE THIRD PARTY
45 PLANS TO USE SUCH WORK TO ENGAGE IN AN UNAUTHORIZED USE OF THE DECEASED
46 INDIVIDUAL'S PERSONA AS PROHIBITED BY THIS ARTICLE; OR (B) DOES NOT
47 WARRANT OR REPRESENT THAT THE THIRD PARTY MAY USE THE LICENSED OR
48 AUTHORIZED ASPECT OF THE DECEASED INDIVIDUAL'S PERSONA FOR COMMERCIAL
49 PURPOSES WITHOUT FIRST OBTAINING THE WRITTEN CONSENT REQUIRED BY SECTION
50 THIRTY-TWO OF THIS ARTICLE. IN THE EVENT THAT SUCH THIRD PARTY LICENSEE
51 INTENDED TO USE ANY ASPECT OF A DECEASED INDIVIDUAL'S PERSONA ENCOM-
52 PASSED IN SUCH WORK FOR COMMERCIAL PURPOSES WITHOUT THE PRIOR KNOWLEDGE
53 AND INTENT OF THE LICENSING OR AUTHORIZING PERSON, IT SHALL BE THE SOLE
54 RESPONSIBILITY OF THE THIRD PARTY LICENSEE TO OBTAIN THE WRITTEN CONSENT
55 REQUIRED BY SECTION THIRTY-TWO OF THIS ARTICLE.
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1 6. UNLESS OTHERWISE AGREED TO IN WRITING, ONLY THE PERSONS WHO ACTUAL-
2 LY AUTHORIZE, PROVIDE FOR SERVICES, MANUFACTURE OR OTHERWISE CREATE AN
3 ADVERTISEMENT, PRODUCT, ARTICLE OF MERCHANDISE, GOOD OR SERVICE EMBODY-
4 ING A DECEASED INDIVIDUAL'S PERSONA SHALL BE RESPONSIBLE FOR OBTAINING
5 THE WRITTEN CONSENT REQUIRED BY SECTION THIRTY-TWO OF THIS ARTICLE. A
6 DISTRIBUTOR OR TRANSMITTER OF SUCH AN ADVERTISEMENT, PRODUCT, ARTICLE OF
7 MERCHANDISE, GOOD OR SERVICE SHALL NOT BE LIABLE FOR ANY VIOLATION OF
8 THIS ARTICLE, UNLESS SUCH DISTRIBUTOR OR TRANSMITTER INTENTIONALLY
9 ENGAGES IN AN UNAUTHORIZED USE OF A DECEASED INDIVIDUAL'S PERSONA AS
10 PROHIBITED BY THIS ARTICLE, KNOWING THAT SUCH USE REQUIRES CONSENT.
11 S 36. REMEDIES. IN THE EVENT THE CONSENT REQUIRED IN SECTION
12 THIRTY-TWO OF THIS ARTICLE IS NOT OBTAINED, ANY PERSON HAVING THE RIGHT
13 TO GIVE SUCH CONSENT AS PROVIDED IN SECTION THIRTY-TWO OF THIS ARTICLE,
14 MAY BRING AN ACTION TO ENJOIN SUCH UNAUTHORIZED USE FOR COMMERCIAL
15 PURPOSES, AND TO RECOVER DAMAGES FOR ANY LOSS OR INJURY SUSTAINED BY
16 REASON THEREOF, INCLUDING AN AMOUNT WHICH WOULD HAVE BEEN A REASONABLE
17 ROYALTY, AND PUNITIVE OR EXEMPLARY DAMAGES.
18 S 37. ENFORCEMENT OF RIGHTS. 1. ANY ACTION TO ENFORCE THE PROVISIONS
19 OF THIS ARTICLE SHALL BE SUBJECT TO THE ONE-YEAR LIMITATION PERIOD SET
20 FORTH IN SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTEEN OF THE CIVIL
21 PRACTICE LAW AND RULES AND MAY ONLY BE COMMENCED IN CONNECTION WITH AN
22 UNAUTHORIZED USE FOR COMMERCIAL PURPOSES THAT OCCURS ON OR AFTER THE
23 EFFECTIVE DATE OF THIS ARTICLE.
24 2. NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE TO THE CONTRARY, IF
25 AN ACTION WAS TAKEN PRIOR TO THE EFFECTIVE DATE OF THIS ARTICLE TO EXER-
26 CISE RIGHTS RECOGNIZED UNDER THIS SECTION RELATING TO A DECEASED INDI-
27 VIDUAL WHO DIED WITHIN SEVENTY YEARS PRIOR TO THE EFFECTIVE DATE OF THIS
28 ARTICLE BY A PERSON ENTITLED TO INHERIT THE DECEASED INDIVIDUAL'S PROP-
29 ERTY UNDER THE LAWS OF INTESTACY IN EFFECT AT THE TIME OF THE DECEASED
30 INDIVIDUAL'S DEATH, OTHER THAN A PERSON WHO WAS DISINHERITED BY THE
31 DECEASED INDIVIDUAL IN A TESTAMENTARY INSTRUMENT, AND THE EXERCISE OF
32 THOSE RIGHTS WAS NOT CHALLENGED SUCCESSFULLY IN A COURT ACTION BY A
33 PERSON DESCRIBED IN SECTION THIRTY-THREE OF THIS ARTICLE, THAT EXERCISE
34 SHALL NOT BE AFFECTED BY SECTION THIRTY-THREE OF THIS ARTICLE. IN SUCH A
35 CASE, THE RIGHTS THAT WOULD OTHERWISE VEST IN ONE OR MORE PERSONS
36 DESCRIBED IN SECTION THIRTY-THREE OF THIS ARTICLE SHALL VEST SOLELY IN
37 THE PERSON OR PERSONS DESCRIBED IN THE LAWS OF INTESTACY, OTHER THAN A
38 PERSON DISINHERITED BY THE DECEASED INDIVIDUAL IN A TESTAMENTARY INSTRU-
39 MENT, FOR ALL FUTURE PURPOSE.
40 S 2. Subdivision 3 of section 215 of the civil practice law and rules
41 is amended to read as follows:
42 3. an action to recover damages for assault, battery, false imprison-
43 ment, malicious prosecution, libel, slander, false words causing special
44 damages, [or] a violation of the right of privacy under section fifty-
45 one of the civil rights law OR A VIOLATION OF THE RIGHT OF PUBLICITY
46 UNDER ARTICLE 3-A OF THE CIVIL RIGHTS LAW;
47 S 3. Severability. If any clause, sentence, paragraph, section or part
48 of this act shall be adjudged by any court of competent jurisdiction to
49 be invalid, such judgment shall not affect, impair or invalidate the
50 remainder thereof, but shall be confined in its operation to the clause,
51 sentence, paragraph, section or part thereof directly involved in the
52 controversy in which such judgment shall have been rendered.
53 S 4. This act shall take effect one year after it shall have become a
54 law.