|SAME AS||SAME AS A05605-C|
|COSPNSR||BENJAMIN, BIAGGI, CARLUCCI, GAUGHRAN, HARCKHAM, JACKSON|
|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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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. LBD05914-19-0S. 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 anyS. 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.