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S05959 Summary:

BILL NOS05959D
 
SAME ASSAME AS A05605-C
 
SPONSORSAVINO
 
COSPNSRBENJAMIN, BIAGGI, CARLUCCI, GAUGHRAN, HARCKHAM, JACKSON
 
MLTSPNSR
 
Add 50-f & 52-c, Civ Rts L
 
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.
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S05959 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5959--D
 
                               2019-2020 Regular Sessions
 
                    IN SENATE
 
                                      May 16, 2019
                                       ___________
 
        Introduced  by  Sens.  SAVINO,  BENJAMIN, CARLUCCI, HARCKHAM, JACKSON --
          read twice and ordered printed, and when printed to  be  committed  to
          the Committee on Codes -- committee discharged and said bill committed
          to  the  Committee on Judiciary -- committee discharged, bill amended,
          ordered reprinted as amended and  recommitted  to  said  committee  --
          committee  discharged,  bill amended, ordered reprinted as amended and
          recommitted to said committee -- recommitted to the Committee on Judi-
          ciary  in  accordance  with  Senate  Rule  6,  sec.  8  --   committee
          discharged, bill amended, ordered reprinted as amended and recommitted
          to  said  committee  --  reported  favorably  from  said committee and
          committed to the Committee on Finance --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee
 
        AN ACT to amend the civil rights law, in relation  to  establishing  the
          right  of  publicity  and  to  providing a private right of action for
          unlawful dissemination or publication of a sexually explicit depiction
          of an individual
 
          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 section
     2  50-f to read as follows:
     3    § 50-f. Right of publicity. 1. For purposes of this section:
     4    a. "deceased performer" means a deceased natural person  domiciled  in
     5  this  state  at the time of death who, for gain or livelihood, was regu-
     6  larly engaged in acting, singing, dancing, or playing a musical  instru-
     7  ment.
     8    b.  "deceased personality" means any deceased natural person domiciled
     9  in this state at the time of death whose name, voice, signature,  photo-
    10  graph, or likeness has commercial value at the time of his or her death,
    11  or  because  of  his or her death, whether or not during the lifetime of
    12  that natural person the person used his or her name,  voice,  signature,

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05914-19-0

        S. 5959--D                          2
 
     1  photograph, or likeness on or in products, merchandise, or goods, or for
     2  purposes  of  advertising  or  selling,  or solicitation of purchase of,
     3  products, merchandise, goods, or services.
     4    c.  "digital replica" means a newly created, original, computer-gener-
     5  ated, electronic performance by an individual in a  separate  and  newly
     6  created,  original  expressive  sound  recording  or audiovisual work in
     7  which the individual did not actually perform, that is so realistic that
     8  a reasonable observer would believe it is a performance by the  individ-
     9  ual  being portrayed and no other individual. A digital replica does not
    10  include the electronic reproduction, computer generated or other digital
    11  remastering  of  an  expressive  sound  recording  or  audiovisual  work
    12  consisting  of an individual's original or recorded performance, nor the
    13  making or duplication of another recording that consists entirely of the
    14  independent fixation of other sounds, even if  such  sounds  imitate  or
    15  simulate the voice of the individual.
    16    d.  "sound  recordings"  are  works that result from the fixation of a
    17  series of musical, spoken, or other sounds, but not including the sounds
    18  accompanying a motion picture or other audiovisual work,  regardless  of
    19  the  nature  of  the  material  objects,  such as disks, tapes, or other
    20  phonorecords, in which they are embodied.
    21    2. a. Any person who uses a deceased personality's name, voice, signa-
    22  ture, photograph, or  likeness,  in  any  manner,  on  or  in  products,
    23  merchandise,  or  goods,  or  for purposes of advertising or selling, or
    24  soliciting purchases of,  products,  merchandise,  goods,  or  services,
    25  without  prior  consent from the person or persons specified in subdivi-
    26  sion four of this section, shall be liable for any damages sustained  by
    27  the person or persons injured as a result thereof.
    28    b.  Any  person  who  uses a deceased performer's digital replica in a
    29  scripted audiovisual work as a  fictional  character  or  for  the  live
    30  performance  of a musical work shall be liable for any damages sustained
    31  by the person or persons injured as a result thereof if the  use  occurs
    32  without  prior consent from the person or persons in subdivision four of
    33  this section, if the use is likely to deceive the public  into  thinking
    34  it was authorized by the person or persons specified in subdivision four
    35  of  this  section.  A  use shall not be considered likely to deceive the
    36  public into thinking it was authorized by the person or  persons  speci-
    37  fied  in  subdivision four of this section if the person making such use
    38  provides a conspicuous disclaimer in the credits of the  scripted  audi-
    39  ovisual  work,  and  in  any  related advertisement in which the digital
    40  replica appears, stating that the use of the  digital  replica  has  not
    41  been  authorized  by the person or persons specified in subdivision four
    42  of this section.
    43    c. In any action brought under this section:
    44    i. the person who violated the section shall be liable to the  injured
    45  party  or  parties  in  an  amount  equal to the greater of two thousand
    46  dollars or the compensatory damages suffered by  the  injured  party  or
    47  parties,  as  a result of the unauthorized use, and any profits from the
    48  unauthorized use that are attributable to such use  and  are  not  taken
    49  into account in computing the compensatory damages.
    50    ii.  in establishing profits under this subdivision, the injured party
    51  or parties shall be required to present proof only of the gross  revenue
    52  attributable  to  the unauthorized use, and the person who violated this
    53  section is required to prove his or her deductible expenses.
    54    iii. punitive damages may also be awarded  to  the  injured  party  or
    55  parties.
    56    d. For purposes of this subdivision:

        S. 5959--D                          3
 
     1    i.  it  shall not be a violation of paragraph a of this subdivision if
     2  the work is a play, book, magazine, newspaper, or other  literary  work;
     3  musical  work  or composition; work of art or other visual work; work of
     4  political, public interest, educational or newsworthy  value,  including
     5  comment,  criticism,  parody or satire; audio or audiovisual work, radio
     6  or television program, if it is fictional or nonfictional entertainment;
     7  or an advertisement or commercial announcement for any of the  foregoing
     8  works.
     9    ii.  it shall not be a violation of paragraph b of this subdivision if
    10  the work is of parody, satire, commentary, or criticism; works of  poli-
    11  tical  or  newsworthy  value,  or  similar works, such as documentaries,
    12  docudramas, or historical  or  biographical  works,  regardless  of  the
    13  degree  of fictionalization; a representation of a deceased performer as
    14  himself or herself, regardless of the degree of fictionalization, except
    15  in a live performance of a musical work; de minimis or incidental; or an
    16  advertisement or commercial announcement for any of the foregoing works.
    17    iii. it shall not be a violation of this section if the use of a name,
    18  voice, signature, photograph, or likeness occurs in connection with  any
    19  news,  public  affairs,  or  sports  program  or  account, regardless of
    20  format, medium or means of transmission, or any political campaign.
    21    iv. it shall not be a violation of this section if the  use  is  of  a
    22  name,  voice,  signature, photograph, or likeness in a commercial medium
    23  solely because the material containing the use is commercially sponsored
    24  or contains paid advertising or product placement, or includes within it
    25  a use in connection with a product, article  of  merchandise,  good,  or
    26  service.  Rather,  it shall be a question of fact whether or not the use
    27  of the deceased personality's name,  voice,  signature,  photograph,  or
    28  likeness  was  so  directly connected with the commercial sponsorship or
    29  with the paid advertising or product placement as to  constitute  a  use
    30  for which consent is required under this subdivision.
    31    e.  In relation to a violation of  paragraph a of this subdivision, if
    32  a work that is protected under paragraph d of this subdivision  includes
    33  within  it  a  use in connection with a product, article of merchandise,
    34  good, or service, this use shall not be exempt under paragraph d of this
    35  subdivision, notwithstanding the unprotected use's inclusion in  a  work
    36  otherwise  exempt under paragraph d of this subdivision, if the claimant
    37  proves that this use is so directly connected with a product, article of
    38  merchandise, good, or service as to constitute an  act  of  advertising,
    39  selling,  or  soliciting  purchases of that product, article of merchan-
    40  dise, good, or service by the deceased personality without prior consent
    41  for the use under paragraph a of this subdivision  from  the  person  or
    42  persons specified in subdivision four of this section.
    43    3. The rights recognized under this section are property rights, free-
    44  ly  transferable  or  descendible,  in  whole  or  in part, by contract,
    45  license, gift, or by means  of  any  trust  or  any  other  testamentary
    46  instrument.  In  the  absence  of  an express transfer in a testamentary
    47  instrument of the deceased personality's rights  in  his  or  her  name,
    48  voice,  signature, photograph, or likeness, a provision in the testamen-
    49  tary instrument that provides for the disposition of the residue of  the
    50  deceased  personality's assets shall be effective to transfer the rights
    51  recognized under this section in  accordance  with  the  terms  of  that
    52  provision.  The  rights established by this section shall also be freely
    53  transferable or descendible by contract, license, gift,  trust,  or  any
    54  other  testamentary  instrument  by any subsequent owner of the deceased
    55  personality's rights as recognized by  this  section.  Nothing  in  this
    56  section  shall  be  construed  to  render  invalid  or unenforceable any

        S. 5959--D                          4
 
     1  contract entered into by a deceased personality during his or her  life-
     2  time  by which the deceased personality assigned the rights, in whole or
     3  in part, to use his or her name, voice, signature, photograph, or  like-
     4  ness.
     5    4.  The  consent  required by this section shall be exercisable by the
     6  person or persons to whom the right of consent, or portion thereof,  has
     7  been  transferred  in accordance with subdivision three of this section,
     8  or if no transfer has occurred, then by the person or  persons  to  whom
     9  the  right of consent, or portion thereof, has passed in accordance with
    10  subdivision five of this section.
    11    5. Subject to subdivisions three and four of this section, the  rights
    12  under this section of an individual dying intestate shall be distributed
    13  under  the  laws of intestate succession, and the rights and remedies of
    14  this article may be exercised and enforced by a person  or  persons  who
    15  possess at least a fifty-one percent interest of the individual's rights
    16  under  this  section.  Such persons shall make a proportional accounting
    17  to, and shall act at all times in good faith with respect to, any  other
    18  person in whom the rights being enforced have vested.
    19    6.  If  any  deceased  personality does not transfer his or her rights
    20  under this section by contract, or by means of a trust  or  testamentary
    21  instrument,  and there are no surviving persons as described in subdivi-
    22  sion five of this section, then the rights set forth in subdivision  two
    23  of this section shall terminate.
    24    7.  a. Any person claiming to be a successor in interest to the rights
    25  of a deceased personality under this section or a licensee  thereof  may
    26  register  that claim with the secretary of state on a form prescribed by
    27  the secretary of state and upon payment of a fee, which the secretary of
    28  state shall set by rule. The form shall be verified  and  shall  include
    29  the  name  and  date  of death of the deceased personality, the name and
    30  address of the claimant, the basis of the claim, and the rights claimed.
    31  A successor in interest to the rights of a  deceased  personality  under
    32  this  section or a licensee thereof shall not have a cause of action for
    33  a use prohibited by this section that occurs  before  the  successor  in
    34  interest or licensee registers a claim of the rights.
    35    b.  Upon  receipt and after filing of any document under this section,
    36  the secretary of state shall post the document  along  with  the  entire
    37  registry of persons claiming to be a successor in interest to the rights
    38  of  a  deceased  personality or a registered licensee under this section
    39  upon the secretary of state's internet website.
    40    c. Claims registered under this subdivision shall be public records.
    41    8. An action shall not be brought under this section by reason of  any
    42  use  of  a deceased personality's name, voice, signature, photograph, or
    43  likeness occurring after the expiration of forty years after  the  death
    44  of the deceased personality.
    45    9.  Nothing  in this section shall apply to the owners or employees of
    46  any medium used for advertising, including, but not limited to,  newspa-
    47  pers, magazines, radio and television networks and stations, cable tele-
    48  vision  systems,  billboards,  and  transit  advertisements, by whom any
    49  advertisement or solicitation in violation of this section is  published
    50  or  disseminated,  unless it is established that the owners or employees
    51  had actual knowledge by prior notification of the  unauthorized  use  of
    52  the deceased performer's digital replica or deceased personality's name,
    53  voice, signature, photograph, or likeness as prohibited by this section.
    54    10.  The  provisions of this section are in addition to, but shall not
    55  supersede, any other rights or remedies available in law or equity.

        S. 5959--D                          5
 
     1    11. This section shall apply to the adjudication of liability and  the
     2  imposition  of  any  damages  or  other  remedies  in cases in which the
     3  liability, damages, and other remedies arise from acts occurring direct-
     4  ly in this state. For purposes of this  section,  acts  giving  rise  to
     5  liability  shall  be limited to the use, on or in products, merchandise,
     6  goods, or  services,  or  the  advertising  or  selling,  or  soliciting
     7  purchases  of,  products,  merchandise, goods, or services prohibited by
     8  this section.
     9    12. Nothing in this  section  shall  be  construed  to  limit,  or  to
    10  enlarge,  the protections that 47 U.S.C. § 230 confers on an interactive
    11  computer service for content provided  by  another  information  content
    12  provider, as such terms are defined in 47 U.S.C. § 230.
    13    §  2.  The civil rights law is amended by adding a new section 52-c to
    14  read as follows:
    15    § 52-c. Private right of action for unlawful dissemination or publica-
    16  tion of a sexually explicit depiction  of  an  individual.  1.  For  the
    17  purposes of this section:
    18    a.  "depicted individual" means an individual who appears, as a result
    19  of digitization, to be  giving  a  performance  they  did  not  actually
    20  perform or to be performing in a performance that was actually performed
    21  by  the  depicted  individual  but  was  subsequently  altered  to be in
    22  violation of this section.
    23    b. "digitization" means to realistically depict the nude body parts of
    24  another human being as the nude body parts of the  depicted  individual,
    25  computer-generated  nude  body  parts  as  the  nude  body  parts of the
    26  depicted individual  or  the  depicted  individual  engaging  in  sexual
    27  conduct,  as  defined  in subdivision ten of section 130.00 of the penal
    28  law, in which the depicted individual did not engage.
    29    c. "individual" means a natural person.
    30    d. "person" means a human being or legal entity.
    31    e. "sexually explicit material" means any portion of an  audio  visual
    32  work  that shows the depicted individual performing in the nude, meaning
    33  with an unclothed or exposed intimate part, as defined in section 245.15
    34  of the penal law, or appearing to engage  in,  or  being  subjected  to,
    35  sexual  conduct,  as defined in subdivision ten of section 130.00 of the
    36  penal law.
    37    2. a. A depicted individual shall have a cause  of  action  against  a
    38  person who, discloses, disseminates or publishes sexually explicit mate-
    39  rial related to the depicted individual, and the person knows or reason-
    40  ably  should have known the depicted individual in that material did not
    41  consent to its creation, disclosure, dissemination, or publication.
    42    b. It shall not be a defense to an  action  under  this  section  that
    43  there  is  a  disclaimer in the sexually explicit material that communi-
    44  cates that the inclusion of the  depicted  individual  in  the  sexually
    45  explicit  material  was unauthorized or that the depicted individual did
    46  not participate in the creation or development of the material.
    47    3. a. A depicted individual may only consent to the creation,  disclo-
    48  sure,  dissemination,  or  publication  of sexually explicit material by
    49  knowingly and voluntarily signing an agreement written in plain language
    50  that includes a general description of the  sexually  explicit  material
    51  and the audiovisual work in which it will be incorporated.
    52    b.  A  depicted  individual  may rescind consent by delivering written
    53  notice within three business days from the date consent was given to the
    54  person in whose favor consent was made,  unless  one  of  the  following
    55  requirements is satisfied:

        S. 5959--D                          6
 
     1    i.  the  depicted  individual is given at least three business days to
     2  review the terms of the agreement before signing it; or
     3    ii.  if  the  depicted individual is represented, the attorney, talent
     4  agent, or personal manager authorized to represent the depicted individ-
     5  ual provides additional written approval of the signed agreement.
     6    4. a. A person is not liable under this section if:
     7    i. the  person  discloses,  disseminates  or  publishes  the  sexually
     8  explicit material in the course of reporting unlawful activity, exercis-
     9  ing  the  person's  law enforcement duties, or hearings, trials or other
    10  legal proceedings; or
    11    ii. the sexually explicit material is a matter  of  legitimate  public
    12  concern,  a  work  of  political or newsworthy value or similar work, or
    13  commentary, criticism or disclosure that is otherwise protected  by  the
    14  constitution  of this state or the United States; provided that sexually
    15  explicit material shall not be considered  of  newsworthy  value  solely
    16  because the depicted individual is a public figure.
    17    5.  In  any  action  commenced pursuant to this section, the finder of
    18  fact, in its discretion, may award injunctive relief, punitive  damages,
    19  compensatory damages, and reasonable court costs and attorney's fees.
    20    6. A cause of action or special proceeding under this section shall be
    21  commenced the later of either:
    22    a.  three  years  after  the  dissemination or publication of sexually
    23  explicit material; or
    24    b. one year from the date a person  discovers,  or  reasonably  should
    25  have  discovered,  the  dissemination  or  publication  of such sexually
    26  explicit material.
    27    7. Nothing in this section shall be read to require a  prior  criminal
    28  complaint,  prosecution  or  conviction to establish the elements of the
    29  cause of action provided for in this section.
    30    8. The provisions of this section including the remedies are in  addi-
    31  tion to, and shall not supersede, any other rights or remedies available
    32  in law or equity.
    33    9.  If  any provision of this section or its application to any person
    34  or circumstance is held invalid, the invalidity shall not  affect  other
    35  provisions  or  applications  of  this section which can be given effect
    36  without the invalid provision  or  application,  and  to  this  end  the
    37  provisions of this section are severable.
    38    10.  Nothing  in  this  section  shall  be  construed  to limit, or to
    39  enlarge, the protections that 47 U.S.C. § 230 confers on an  interactive
    40  computer  service  for  content  provided by another information content
    41  provider, as such terms are defined in 47 U.S.C. § 230.
    42    § 3. This act shall take effect on the one hundred eightieth day after
    43  it shall have become a law, and shall apply to  all  living  individuals
    44  and deceased individuals who died on or after such date.
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