Bill Text: CA SB999 | 2011-2012 | Regular Session | Introduced
Bill Title: Invasion of privacy: statute of limitations.
Spectrum: Partisan Bill (Republican 2-0)
Status: (Introduced - Dead) 2012-05-03 - Set, first hearing. Hearing canceled at the request of author. [SB999 Detail]
Download: California-2011-SB999-Introduced.html
BILL NUMBER: SB 999 INTRODUCED
BILL TEXT
INTRODUCED BY Senator La Malfa
FEBRUARY 6, 2012
An act to amend Section 3344 of the Civil Code, relating to
statute of limitations.
LEGISLATIVE COUNSEL'S DIGEST
SB 999, as introduced, La Malfa. Invasion of privacy: statute of
limitations.
Under existing law, a person who knowingly uses another's name,
voice, signature, photograph, or likeness, in any manner, on or in
products, merchandise, or goods, or for the purposes of advertising
or selling, or soliciting purchases of, products, merchandise, goods,
or services, without that person's prior consent, or, in the case of
a minor, the prior consent of his or her parent or legal guardian,
shall be liable for any damages sustained by the person or persons
injured as a result thereof and for the payment to the injured party
of any profits attributable to that unauthorized use. An action for
the unauthorized commercial use of a person's image or name must be
brought within 2 years of its publication.
This bill would provide that a claim seeking damages, injunctive
relief, or both for the unauthorized commercial use of a person's
name, signature, photograph, or likeness on an Internet Web site may
be brought at any time.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3344 of the Civil Code is amended to read:
3344. (a) Any person who knowingly uses another's name, voice,
signature, photograph, or likeness, in any manner, on or in products,
merchandise, or goods, or for purposes of advertising or selling, or
soliciting purchases of, products, merchandise, goods or services,
without such the person's prior
consent, or, in the case of a minor, the prior consent of his or
her parent or legal guardian, shall be liable for any damages
sustained by the person or persons injured as a result
thereof of that use . In addition, in any action
brought under this section, the person who violated the section
shall be liable to the injured party or parties in an amount equal to
the greater of seven hundred fifty dollars ($750) or the actual
damages suffered by him or her as a result of the unauthorized use,
and any profits from the unauthorized use that are attributable to
the use and are not taken into account in computing the actual
damages. In establishing such profits
attributable to unauthorized use , the injured party or parties
are required to present proof only of the gross revenue attributable
to such use, and the person who violated this section is required to
prove his or her deductible expenses. Punitive damages may also be
awarded to the injured party or parties. The prevailing party in any
action under this section shall also be entitled to attorney's fees
and costs.
(b) As used in this section, "photograph" means any photograph or
photographic reproduction, still or moving, or any videotape or live
television transmission, of any person, such that the person is
readily identifiable.
(1) A person shall be deemed to be readily identifiable from a
photograph when one who views the photograph with the naked eye can
reasonably determine that the person depicted in the photograph is
the same person who is complaining of its unauthorized use.
(2) If the photograph includes more than one person so
identifiable, then the person or persons complaining of the use shall
be represented as individuals rather than solely as members of a
definable group represented in the photograph. A definable group
includes, but is not limited to, the following examples: a crowd at
any sporting event, a crowd in any street or public building, the
audience at any theatrical or stage production, a glee club, or a
baseball team.
(3) A person or persons shall be considered to be represented as
members of a definable group if they are represented in the
photograph solely as a result of being present at the time the
photograph was taken and have not been singled out as individuals in
any manner.
(c) Where a photograph or likeness of an employee of the person
using the photograph or likeness appearing in the advertisement or
other publication prepared by or in behalf of the user is only
incidental, and not essential, to the purpose of the publication in
which it appears, there shall arise a rebuttable presumption
affecting the burden of producing evidence that the failure to obtain
the consent of the employee was not a knowing use of the employee's
photograph or likeness.
(d) For purposes of this section, a use of a name, voice,
signature, photograph, or likeness in connection with any news,
public affairs, or sports broadcast or account, or any political
campaign, shall not constitute a use for which consent is required
under subdivision (a).
(e) The use of a name, voice, signature, photograph, or likeness
in a commercial medium shall not constitute a use for which consent
is required under subdivision (a) solely because the material
containing such use that uses the name,
voice, signature, photograph, or likeness is commercially
sponsored or contains paid advertising. Rather it shall be a question
of fact whether or not the use of the person's name, voice,
signature, photograph, or likeness was so directly connected with the
commercial sponsorship or with the paid advertising as to constitute
a use for which consent is required under subdivision (a).
(f) Nothing in this section shall apply to the owners or employees
of any medium used for advertising, including, but not limited to,
newspapers, magazines, radio and television networks and stations,
cable television systems, billboards, and transit ads, by whom any
advertisement or solicitation in violation of this section is
published or disseminated, unless it is established that
such those owners or employees had knowledge of
the unauthorized use of the person's name, voice, signature,
photograph, or likeness as prohibited by this section.
(g) The remedies provided for in this section are cumulative and
shall be in addition to any others provided for by law.
(h) A claim under this section that seeks damages, injunctive
relief, or both for the unauthorized use of another person's name,
signature, photograph, or likeness on an Internet Web site may be
brought at any time.
