BENJAMIN, 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.
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.
