Bill Text: NJ S167 | 2012-2013 | Regular Session | Introduced
Bill Title: Provides criminal penalties for unauthorized use of images or likeness of minors and establishes civil action.
Spectrum: Partisan Bill (Republican 3-0)
Status: (Introduced - Dead) 2012-01-10 - Introduced in the Senate, Referred to Senate Judiciary Committee [S167 Detail]
Download: New_Jersey-2012-S167-Introduced.html
STATE OF NEW JERSEY
215th LEGISLATURE
PRE-FILED FOR INTRODUCTION IN THE 2012 SESSION
Sponsored by:
Senator ROBERT W. SINGER
District 30 (Monmouth and Ocean)
Senator KEVIN J. O'TOOLE
District 40 (Bergen, Essex, Morris and Passaic)
SYNOPSIS
Provides criminal penalties for unauthorized use of images or likeness of minors and establishes civil action.
CURRENT VERSION OF TEXT
Introduced Pending Technical Review by Legislative Counsel
An Act concerning criminal and civil invasion of privacy and supplementing Titles 2A and 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. a. Any person who knowingly uses the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor, 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, or any other commercial purposes, without the prior consent of the minor's parent or guardian, shall be guilty of a disorderly persons offense. As used in this section, "minor" means a person under the age of 18.
b. The provisions of this section shall not apply to:
(1) the publication, printing, display, or use of the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor in any newspaper, magazine, book, Internet publication, news broadcast, telecast or webcast, or other news medium or publication as part of a bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; or
(2) 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, Internet publications and websites, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the minor's name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness as prohibited by this section.
2. a. Any person who knowingly uses the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor, 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, or any other commercial purposes, without the prior consent of the minor's parent or guardian, shall be liable in a civil action. As used in this section, "minor" means a person under the age of 18.
b. A plaintiff who prevails in a civil action pursuant to this section shall be awarded:
(1) damages in the amount of $1,000 plus reasonable attorney's fees and costs or actual damages, whichever is greater; and
(2) 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, the injured party is 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 deductible expenses.
c. In addition to the remedies provided for in subsection b. the court may order:
(1) injunctive relief and such other preliminary and equitable relief as the court determines to be appropriate; and
(2) punitive damages.
d. The provisions of this section shall not apply to:
(1) the publication, printing, display, or use of the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor in any newspaper, magazine, book, Internet publication, news broadcast, telecast or webcast, or other news medium or publication as part of a bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; or
(2) 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, Internet publications and websites, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the minor's name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness as prohibited by this section.
e. The remedies provided for in this section shall be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of his privacy.
3. This act shall take effect immediately and shall be applicable to all violations of this act on or after the effective date.
STATEMENT
This bill would prohibit the unauthorized use of a minor's name, voice, portrait, photograph, film, videotape, recording or any other reproduction of the minor's image or likeness. The bill defines a "minor" as a person under the age of 18.
Under the provisions of the bill, it would be a disorderly persons offense if any person knowingly uses the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor, 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, or any other commercial purposes, without the prior consent of the minor's parent or guardian. A disorderly persons offense is punishable by a term of imprisonment of up to six months, a fine up to $1,000 or both.
The bill provides for two exceptions: (1) legitimate news gathering; and (2) authorized use in advertising. Specifically, the provisions of the bill would not apply to: (1) the publication, printing, display, or use of the name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness of a minor in any newspaper, magazine, book, Internet publication, news broadcast, telecast or webcast, or other news medium or publication as part of a bona fide news report or presentation having a current and legitimate public interest and where such name or likeness is not used for advertising purposes; or (2) 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, Internet publications and websites, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners or employees had knowledge of the unauthorized use of the minor's name, name, voice, portrait, photograph, film, videotape, recording or other reproduction of the image or likeness as prohibited by this section.
The bill would also establish a civil action for such unauthorized use. A plaintiff who prevails in a civil action shall be awarded:
· damages in the amount of $1,000 plus reasonable attorney's fees and costs or actual damages, whichever is greater; 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, the injured party is 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 deductible expenses.
In addition, the court may order injunctive relief and such other preliminary and equitable relief as the court determines to be appropriate and punitive damages.
The same two exceptions which apply in the criminal penalties provision of the bill are applicable in this section of the bill which provides for a civil action: (1) legitimate news gathering; and (2) authorized use in advertising.
The remedies provided for in the bill would be in addition to and not in limitation of the remedies and rights of any person under the common law against the invasion of his privacy.
This bill would take effect immediately and would be applicable to all violations of the act committed on or after the effective date of the bill.
This bill was prompted by a number of instances in the sponsor's district when an unknown photographer took pictures of individuals in the area. These pictures were later displayed on Internet sites for solicitation and advertising purposes without consent.
This bill was modeled after similar statutes in California (Cal. Civ. Code § 3344), New York (NY CLS Civ. R. §50 and §51), and Virginia (Va. Code Ann. §18-2-216.1).
