|SAME AS||SAME AS S05650|
|COSPNSR||Santabarbara, Simotas, Hevesi, Titone, Titus|
|Add Art 3-A SS30 - 37, Civ Rts L; amd S215, CPLR|
|Provides that a property right exists in a deceased individual's persona for seventy years after the death of the individual.|
|05/29/2015||referred to judiciary|
|01/06/2016||referred to judiciary|
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NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7904 SPONSOR: Morelle
TITLE OF BILL: An act to amend the civil rights law and the civil practice law and rules, in relation to the right of publicity   SUMMARY OF PROVISIONS: Section, 1 - Amends the Civil Rights Law by adding a new article 3-A Adds a new section 30 - Definitions. Adds a new section 31 - Property right established. Adds a new section 32 - Prohibited uses Adds a new section 33 - Consent Adds a new section 34 - Exemptions from use restrictions. Adds a new section 35 - Applicability Adds a new section 36 - Remedies Adds a new section 37 - Enforcement of rights Section 2 - Amends Subdivision 3 of section 215 of the civil practice law and rules. Section 3 - Provides for a savings clause to prevent impairment of the act. Section 4- Effective date.   JUSTIFICATION: This bill provides for a "right of publicity" for deceased personalities and grants this property right to a deceased personality's estate for a term of seventy (70) years following their death. This right of public- ity would safeguard the significant and cherished right of deceased personalities in New York while simultaneously protecting the First Amendment considerations of interested parties and businesses. This balanced approach will provide important protections against commercial exploitation of the name, portrait, picture, voice, signature, photo- graph, image, likeness, bodies of work or similar matters relating to a deceased personality. This legislation also limits the enforcement of the prohibitions outlined in the bill to seventy (70) years following the death of a personality. New York's deceased personalities, in many instances, spent entire careers building reputations and bodies of work that are a property right that should not be extinguished with their passing. This property right should also be protected after their pass- ing and may be transferred by written contract or testamentary instru- ment. This bill would protect the legitimate and authorized commercial use of the right of publicity for deceased individuals while providing protections from unscrupulous individuals or entities attempting to commercially exploit.   LEGISLATIVE HISTORY: New Bill   FISCAL IMPLICATIONS: None to the State   EFFECTIVE DATE: This act shall take effect one year after it shall become a law.
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STATE OF NEW YORK ________________________________________________________________________ 7904 2015-2016 Regular Sessions IN ASSEMBLY 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 § 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. LBD11099-02-5A. 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 § 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 § 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 § 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 § 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 § 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 toA. 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.A. 7904 4 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 § 36. Remedies. In the event the consent required in section thirty- 12 two of this article is not obtained, any person having the right to give 13 such consent as provided in section thirty-two of this article, may 14 bring an action to enjoin such unauthorized use for commercial purposes, 15 and to recover damages for any loss or injury sustained by reason there- 16 of, including an amount which would have been a reasonable royalty, and 17 punitive or exemplary damages. 18 § 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 § 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 § 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 § 4. This act shall take effect one year after it shall have become a 54 law.