Bill Text: NJ A4480 | 2024-2025 | Regular Session | Introduced
Bill Title: Establishes civil right of action for misuse of individual's name, image, likeness, or voice.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced) 2024-06-06 - Reported and Referred to Assembly Judiciary Committee [A4480 Detail]
Download: New_Jersey-2024-A4480-Introduced.html
Sponsored by:
Assemblyman CHRIS TULLY
District 38 (Bergen)
SYNOPSIS
Establishes civil right of action for misuse of individual's name, image, likeness, or voice.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the use of an individual's name, image, likeness, or voice, and supplementing Title 56 of the Revised Statutes and Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
"Definable group" means an assemblage of individuals existing or brought together with or without interrelation, orderly form, or arrangement, including, but not limited to, a crowd at any sporting event, a crowd in any street or public building, or the audience at any theatrical or entertainment production.
"Image" means any photograph or photographic reproduction, still or moving, or any recorded or live visual transmission, of any individual, so that the individual is readily identifiable.
"Individual" means a human being, living or dead.
"Likeness" means the use of an image, realistic facsimile of an image, or portrait of an individual for commercial purposes.
"Person" means any individual, firm, association, partnership, corporation, joint stock company, syndicate, receiver, common law trust, conservator, statutory trust, or any other concern by whatever name known or however organized, formed, or created, and includes not-for-profit corporations, associations, educational and religious institutions, political parties, or community, civic, or other organizations.
"Use" means commercial exploitation of an individual's name, image, likeness, or voice, including, but not limited to, the display or exhibition of the individual's name, image, likeness, or voice, pursuant to a contract, license, or royalty agreement, whether or not for monetary remuneration, in association with a commercial enterprise, non-profit fundraising solicitation, or political cause or campaign; or the continuing commercial availability of a sound recording or audiovisual work in which the individual's name, image, likeness, or voice is readily identifiable.
"Voice" means a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.
2. a. Every individual has a property right in the use of that individual's name, image, likeness, or voice in any medium in any manner.
b. The individual rights provided for in P.L. , c. (C. ) (pending before the Legislature as this bill) constitute property rights and are freely assignable and licensable, and do not expire upon the death of the individual, whether or not such rights were commercially exploited by the individual during the individual's lifetime. Such property rights shall be descendible to the executors, assigns, heirs, or devisees of the individual so protected by this section.
c. The rights provided for in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deemed exclusive to the individual, subject to the assignment or licensing of such rights as provided in subsection b. of this section, during such individual's lifetime and to the executors, heirs, assigns, or devisees for a period of 10 years after the death of the individual, unless extended pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).
3. a. Commercial exploitation of the property right by any executor, assignee, heir, or devisee, if the individual is deceased, shall maintain the right as the exclusive property of the executor, assignee, heir, or devisee until such right is terminated as provided for in subsection b. of this section.
b. The exclusive right of commercial exploitation is terminated by proof of the non-use of the name, image, likeness, or voice of an individual for commercial purposes by an executor, assignee, heir, or devisee to such use for a period of two years subsequent to the initial period of 10 years following the individual's death.
4. a. (1) Any person who knowingly uses or infringes upon the use of an individual's property right as established pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), without authorization or consent in accordance with subsection b. of this section, in any medium and in any manner directed to any person other than such individual, for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services, is subject to a civil action in this State.
(2) A person shall be liable in a civil action in this State if the person publishes, performs, distributes, transmits, or otherwise makes available to the public an individual's name, image, likeness, or voice, with knowledge that use of the name, image, likeness, or voice was not authorized or consented to by the individual or the individual's executor, assignee, heir, or devisee.
(3) A person shall be liable in a civil action in this State if the person distributes, transmits, or otherwise makes available an algorithm, software program, software code, tool, or other technology, service, or device, the primary purpose or function of which is the production of an individual's name, image, likeness, or voice without authorization or consent by the individual or the individual's executor, assignee, heir, or devisee.
b. Consent or authorization for use under P.L. , c. (C. ) (pending before the Legislature as this bill) shall be provided by the following prior to the use of a person's name, image, likeness, or voice:
(1) the individual;
(2) a parent or legal guardian of a minor, where applicable; or
(3) an executor or administrator, assignee, heir, or devisee of a deceased individual, where applicable.
c. It shall not be a defense to a violation of subsection a. of this section that the image includes more than one individual so identifiable; provided, that the individual or individuals complaining of the use shall bring separate causes of action and shall not be represented solely as members of a definable group depicted in the image.
d. If the unauthorized use is by means of products, merchandise, goods or other tangible personal property, all such property, including all instrumentalities used in connection with the unauthorized use by the person in violation of this section, is declared contraband and subject to seizure by, and forfeiture to, the State in the same manner as provided by law for the seizure and forfeiture of other contraband items.
5. a. The court having jurisdiction for any action arising pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) may grant injunctions on such terms as it may deem reasonable to prevent or restrain the unauthorized use of an individual's name, image, likeness, or voice. As part of such injunction, the court may authorize the forfeiture of all unauthorized items and seize all instrumentalities used in connection with the violation of the individual's property rights. All instrumentalities seized pursuant to enforcing an injunction under this subsection shall be liquidated and used to satisfy statutory damages, if damages are recovered by the rights holder.
b. At any time while an action under P.L. , c. (C. ) (pending before the Legislature as this bill) is pending, the court may order the impounding, on such terms as it may deem reasonable, of all materials or any part thereof claimed to have been made or used in violation of the individual's property rights, and such court may enjoin the use of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.
c. As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the individual's property rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.
d. (1) An individual is entitled to recover the actual damages suffered as a result of the knowing use or infringement of such individual's property rights and any profits that are attributable to such use or infringement which are not taken into account in computing the actual damages, plus reasonable attorneys' fees. Profit or lack thereof by the unauthorized use or infringement of an individual's property rights shall not be a criteria for determining liability.
(2) An individual is entitled to recover three times the amount to which the individual is entitled under paragraph (1) of this subsection, plus reasonable attorneys' fees, if a person knowingly uses or infringes the individual property rights established pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) of a member of the Armed Forces of the United States or the New Jersey National Guard.
e. The remedies provided for in this section are cumulative and shall be in addition to any other remedies provided for by law, including, but not limited to, a civil action for common law defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, public disclosure of private facts, unlawful interference with prospective economic advantage, or tortious interference with contractual relations.
f. Where a person has entered into a contract for an individual's exclusive personal services as a recording artist or an exclusive license to distribute sound recordings that capture an individual's audio performances, an action to enforce the property rights set forth in P.L. , c. (C. ) (pending before the Legislature as this bill) may be brought by any party to the contract or license.
6. a. It shall be deemed a fair use and shall not be a violation of an individual's property rights under section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) if the use of a name, image, likeness, or voice is in connection with criticism, comment, news reporting, teaching, scholarship, or research, pursuant to 17 U.S.C. s.107, or if the use is in accordance with paragraph (4) of subsection b. of 15 U.S.C. s.1115.
b. The use of a name, image, likeness, or voice in a commercial medium does not constitute a use for purposes of advertising or solicitation solely because the material containing such use is commercially sponsored or contains paid advertising. It shall be a question of fact whether the use of the complainant individual's name, image, likeness, or voice was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for purposes of advertising or solicitation in violation of section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill).
c. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall apply to the owners or employees of any medium or platform used for advertising, including, but not limited to, newspapers, magazines, radio and television stations, billboards, or other print or digital medium or platform, who have published or disseminated any advertisement or solicitation in violation of P.L. , c. (C. ) (pending before the Legislature as this bill), unless it is established that such owners or employees had knowledge or reasonably should have known of the unauthorized use of the individual's name, image, likeness, or voice as prohibited by P.L. , c. (C. ) (pending before the Legislature as this bill). Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall affect the rights or privileges of providers or users of interactive computer services pursuant to subsection c. of 47 U.S.C. s.230.
7. Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall affect any business, firm, or partnership name filed with the Secretary of State, pursuant to R.S.56:1-1 et seq.; any mark, service mark, trademark, or trade name registered with the Secretary of State, pursuant to P.L.1995, c.171 (C.56:3-13a et seq.); or any contract made pursuant to the "Music Licensing Practices Act," P.L.1996, c.122 (C.56:3A-1 et seq.), in effect as of the effective date of P.L. , c. (C. ) (pending before the Legislature as this bill).
Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall limit the enforceability of N.J.S.2C:21-17, theft of identity; the "New Jersey Anti-Piracy Act," P.L.1991, c.125 (C.2C:21-21); or the "New Jersey Trademark Counterfeiting Act," P.L.1997, c.57 (C.2C:21-32).
Nothing in P.L. , c. (C. ) (pending before the Legislature as this bill) shall limit the rights of student-athletes under the "New Jersey Fair Play Act," P.L.2020, c.83 (C.18A:3B-86 et seq.).
The rights and remedies provided under P.L. , c. (C. ) (pending before the Legislature as this bill) shall be in addition to, and not in lieu of, any rights or remedies applicable under Title 17 of the United States Code.
8. In addition to the civil action and remedies authorized and available pursuant to section 4 and section 5 of P.L. , c. (C. and C. ) (pending before the Legislature as this bill), any person who violates section 4 of P.L. , c. (C. ) (pending before the Legislature as this bill) shall be guilty of an offense as a disorderly person.
9. This act shall take effect
on the first day of the third month next following enactment, except that the
Secretary of State and the Attorney General may take such anticipatory action
as may be necessary for the timely implementation of this act.
STATEMENT
This bill establishes a person's right of publicity as a property right in the New Jersey Statutes. The right of publicity is commonly defined as the right to prevent unauthorized commercial use of a person's name, image, likeness, or voice. In this State, the right of publicity has long been recognized and developed through case law by the courts since Edison v. Edison Polyform & Mfg. Co., 73 N.J. Eq. 136 (Ct. Chancery 1907), but has never been codified in the statutes.
Under the bill, every individual has an exclusive property right in the use of that individual's name, image, likeness, or voice in any medium in any manner, which may be assigned, licensed, or inherited by the individual's executors, assignees, heirs, or devisees. A deceased individual's executors, assignees, heirs, or devisees retain the individual's exclusive right of publicity for ten years following death, which may be extended in perpetuity if that right is commercially exploited, or which may be terminated after two years for non-use following the initial ten year period.
A person who knowingly infringes on an individual's right of publicity, including infringement through the use of artificial intelligence technology, shall be liable in a civil action and shall also be guilty of a disorderly person offense. A disorderly person offense is punishable by imprisonment for up to six months, a fine of up to $1,000, or both. In addition, court may order an award of monetary damages as well as injunctive relief such as the forfeiture, seizure, or destruction of any infringing items.
The bill sets forth fair use exceptions for criticism, comment, news reporting, teaching, scholarship, research, or other uses consistent with the federal Copyright Act of 1976 and the federal Lanham Act. The bill is intended to not affect any existing licensing or publicity contracts, or service marks, trademarks, or trade names, properly made or registered as of the effective date of the bill. The bill is also intended to not affect any existing civil tort laws concerning defamation, libel, slander, invasion of privacy, false light, misappropriation of identity, intrusion of privacy, public disclosure of private facts, unlawful interference with prospective economic advantage, or tortious interference with contractual relations, or any existing criminal laws concerning identity theft, music piracy, or counterfeiting. The bill is also not intended to limit the rights of student-athletes under the New Jersey Fair Play Act.
