Bill Text: NY A05605 | 2019-2020 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: 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.

Spectrum: Partisan Bill (Democrat 18-0)

Status: (Passed) 2020-11-30 - SIGNED CHAP.304 [A05605 Detail]

Download: New_York-2019-A05605-Introduced.html


                STATE OF NEW YORK
        ________________________________________________________________________
                                          5605
                               2019-2020 Regular Sessions
                   IN ASSEMBLY
                                    February 14, 2019
                                       ___________
        Introduced  by  M.  of  A.  WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT --
          Multi-Sponsored by -- M.  of  A.  BRAUNSTEIN,  D'URSO,  FAHY,  HEVESI,
          JAFFEE,  STIRPE,  TAYLOR -- read once and referred to the Committee on
          Judiciary
        AN ACT to amend the civil rights law, in relation to the right of priva-
          cy and the right of publicity; and to amend the civil practice law and
          rules, in relation to the timeliness of commencement of an action  for
          violation of the right of publicity
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
     1    Section 1. Section 50 of the civil rights law  is  renumbered  section
     2  50-f and a new section 50 is added to read as follows:
     3    §  50.  Definitions.    For the purposes of sections fifty-f, fifty-g,
     4  fifty-h, fifty-i and fifty-one of  this  article,  the  following  terms
     5  shall have the following meanings:
     6    1.  "Deceased  individual"  means any individual, including his or her
     7  persona, who has died.
     8    2. "Digital replica" means a computer-generated or electronic  reprod-
     9  uction of a living or deceased individual's likeness or voice that real-
    10  istically  depicts  the  likeness  or  voice  of  the  individual  being
    11  portrayed.  A  digital  replica  is  included  within  an   individual's
    12  portrait.
    13    3. "Secretary" means the secretary of state.
    14    4.  "Fund-raising" means an organized activity to solicit donations of
    15  money or other goods or services from persons or entities by  an  organ-
    16  ization, company or public entity.
    17    5. "Individual" means a natural person, living or dead.
    18    6.  "Name"  means the actual or assumed name, or nickname, of a living
    19  or deceased individual that identifies that individual.
    20    7. "Person" means any natural person, firm, association,  partnership,
    21  corporation,  company,  syndicate, receiver, common law trust, conserva-
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD05914-02-9

        A. 5605                             2
     1  tor, statutory trust, or any other entity  by  whatever  name  known  or
     2  however organized, formed or created, and includes not-for-profit corpo-
     3  rations, associations, educational and religious institutions, political
     4  parties, and community, civic or other organizations.
     5    8.  "Persona"  means, individually or collectively, the name, portrait
     6  or picture, voice, or signature of an individual.
     7    9. "Right of privacy" means a personal right, which  protects  against
     8  the unauthorized use of a living individual's name, portrait or picture,
     9  voice,  or signature for advertising purposes or purposes of trade with-
    10  out written consent, extinguished upon death.
    11    10. "Right of publicity" means an independent property right,  derived
    12  from  and  independent of the right of privacy, which protects the unau-
    13  thorized use of a living or  deceased  individual's  name,  portrait  or
    14  picture,  voice,  or  signature  for advertising purposes or purposes of
    15  trade without written consent.
    16    11. "Signature" means a handwritten or otherwise legally binding  form
    17  of an individual's name, written or authorized by that individual, which
    18  distinguishes the individual from all other individuals.
    19    §  2.  Section  50-f of the civil rights law, as renumbered by section
    20  one of this act, is amended to read as follows:
    21    § 50-f. Right of privacy and right of publicity.  [A person,  firm  or
    22  corporation  that  uses for advertising purposes, or for the purposes of
    23  trade, the name, portrait or picture of any living person without having
    24  first obtained the written consent of such person, or if a minor of  his
    25  or  her  parent  or  guardian,  is  guilty of a misdemeanor.] 1. For the
    26  purposes of the right of privacy, a living  individual's  persona  shall
    27  not  be  used  for  advertising  purposes  or  purposes of trade without
    28  obtaining the written consent of such person, or if a minor  of  his  or
    29  her parent or guardian.
    30    2.  For  the  purposes of the right of publicity, a living or deceased
    31  individual's  persona  is  personal  property,  freely  transferable  or
    32  descendible, in whole or in part by contract or by means of any trust or
    33  testamentary  instrument,  whether  such contract, trust or testamentary
    34  instrument was entered into or executed before or  after  the  effective
    35  date of this subdivision.  Such right of publicity shall not be used for
    36  advertising  purposes  or  the  purposes  of trade without obtaining the
    37  written consent of the individual, his or her successors or  assigns  as
    38  provided  for  in the provisions of this article pertaining to the right
    39  of publicity. In the case of a minor,  written  consent  must  first  be
    40  obtained  of his or her parent or guardian for the purposes of an exclu-
    41  sive or non-exclusive license as limited by section 35.03  of  the  arts
    42  and  cultural  affairs  law.  A  parent  or  guardian is prohibited from
    43  assigning a minor's right of publicity, and such  assignments  shall  be
    44  unenforceable. Nothing in this section shall limit any other rights such
    45  minor may have.
    46    §  3.  The  civil  rights  law is amended by adding three new sections
    47  50-g, 50-h and 50-i to read as follows:
    48    § 50-g. Duration of an individual's right of publicity. Every individ-
    49  ual's right of publicity shall continue to exist for forty  years  after
    50  his or her death, and does not expire upon the death of the individual.
    51    §  50-h.  Methods of transfer and conveyance. 1. The rights recognized
    52  under the provisions of this article pertaining to the right of  public-
    53  ity are freely transferable and descendible, in whole or in part, by the
    54  following:
    55    (a) contract;
    56    (b) license;

        A. 5605                             3
     1    (c) gift;
     2    (d) trust;
     3    (e)  testamentary document. The rights shall vest in the persons enti-
     4  tled to the right of publicity under the testamentary instrument of  the
     5  deceased individual effective as of the date of that individual's death.
     6  In  the  absence  of an express transfer in a testamentary instrument of
     7  the deceased individual's right of publicity, a provision in the  testa-
     8  mentary  instrument  that provides for the disposition of the residue of
     9  the deceased individual's assets shall  be  effective  to  transfer  the
    10  rights  recognized  under  this  article in accordance with the terms of
    11  that provision; and
    12    (f) intestate succession. The right  to  publicity  of  an  individual
    13  dying  intestate  shall  be  distributed  under  the  laws  of intestate
    14  succession, and the rights and remedies of this article may be exercised
    15  and enforced by a person or persons who possess  at  least  a  fifty-one
    16  percent  interest  of  the individual's right of publicity. Such persons
    17  shall make a proportional accounting to, and shall act at all  times  in
    18  good  faith  with  respect to, any other person in whom the rights being
    19  enforced have vested.
    20    2. The rights established by the provisions of this article pertaining
    21  to the right of publicity shall also be freely transferable or descendi-
    22  ble by any subsequent  owner  of  the  deceased  individual's  right  to
    23  publicity  as  recognized  by this article. Nothing in the provisions of
    24  this article pertaining to the right of publicity shall be construed  to
    25  render  invalid or unenforceable any contract entered into by a deceased
    26  individual during his or her lifetime by which the  deceased  individual
    27  assigned  the  rights,  in  whole or in part, to use his or her right of
    28  publicity as defined in this article.
    29    3. If any deceased individual does not  transfer  his  or  her  rights
    30  under  this  section  by  contract, license, gift, trust or testamentary
    31  document, and there are no surviving persons as described  in  paragraph
    32  (f) of subdivision one of this section, then the property rights associ-
    33  ated with the deceased individual's right of publicity shall terminate.
    34    4.  Any  person claiming to be a successor in interest to the right of
    35  publicity of a deceased individual under this article or a licensee of a
    36  deceased individual's right of publicity shall register that claim  with
    37  the  secretary on a form prescribed by the secretary and upon payment of
    38  a fee of one hundred dollars. The form shall include the name  and  date
    39  of  death of the deceased individual, the name and address of the claim-
    40  ant, the basis of the claim, and a  sworn  affidavit  under  penalty  of
    41  perjury  as to the rights claimed. Claims registered under this registry
    42  and information regarding such successors in interest  to  the  deceased
    43  individual's right of publicity shall be public records.
    44    5.  Upon  receipt  and  after  filing of any document pursuant to this
    45  section, the secretary shall post the document  along  with  the  entire
    46  registry  of  persons  claiming  to  be  successors  in  interest to the
    47  deceased individual's right of publicity or a registered licensee  under
    48  this  section  upon  an  internet website developed by the secretary for
    49  such purpose. The secretary may reproduce by digital or other means  any
    50  of the filings or documents and destroy the original filing or document.
    51    6. The secretary is authorized to promulgate such regulations as he or
    52  she  shall  deem  necessary  to implement the provisions of subdivisions
    53  four and five of this section.
    54    7. No action shall be brought under the  provisions  of  this  article
    55  pertaining  to the right of publicity by reason of any use of a deceased
    56  individual's right of publicity occurring after the  expiration  of  the

        A. 5605                             4
     1  duration  of  the  right  of publicity as provided in section fifty-g of
     2  this article. Furthermore, no action may be brought under the provisions
     3  of this article pertaining to the right of publicity for a violation  of
     4  a  deceased  individual's  right of publicity unless the claim is regis-
     5  tered. However, an action may be brought under the  provisions  of  this
     6  article  pertaining  to  the  right  of  publicity  for a violation of a
     7  deceased individual's right of publicity:
     8    (a) for any violation that occurs prior to registration  provided  the
     9  claim  is registered within six months following the individual's death;
    10  or
    11    (b) for any subsequent publication,  manufacturing,  distribution,  or
    12  sale  or  use in violation of a deceased individual's right of publicity
    13  once a claim has been registered.
    14    8. If there is a right of publicity registration for a deceased  indi-
    15  vidual,  any  person  seeking  to license the right of publicity for the
    16  individual shall have the right to rely upon such registration and post-
    17  ing and thereby presume that the person who has  registered  and  posted
    18  his  or  her  claim  on  the secretary's public internet website has the
    19  right to assign or license the deceased individual's right of publicity.
    20  The registration and posting of a person's claim to a deceased  individ-
    21  ual's  right  of  publicity  on  the secretary's public internet website
    22  shall constitute a defense to an action brought under the provisions  of
    23  this article pertaining to the right of publicity.
    24    9. Any person who knowingly makes a false or fraudulent representation
    25  in  connection  with  a  registration  with the secretary to establish a
    26  claim to a deceased individual's right of  publicity  pursuant  to  this
    27  section  shall  be  liable  for any damages sustained as a result of the
    28  false or fraudulent registration as determined by a court  of  competent
    29  jurisdiction.
    30    10.  Any document filed with the secretary, whether such document is a
    31  reproduction or an original, may be destroyed by  the  secretary  forty-
    32  seven  years  after the death of the individual whose right of publicity
    33  has been registered therein. The secretary  shall  remove  any  document
    34  registered and posted upon the public internet website upon showing of a
    35  court  order from a court of competent jurisdiction that a person claim-
    36  ing to be a successor in interest to a deceased  individual's  right  of
    37  publicity has wrongfully registered such claim.
    38    § 50-i. No abrogation of rights and remedies. Nothing contained in the
    39  provisions  of  this  article  shall  be deemed to abrogate or otherwise
    40  limit any rights or remedies otherwise conferred  by  federal  or  state
    41  law.
    42    §  4. Section 51 of the civil rights law, as amended by chapter 674 of
    43  the laws of 1995, is amended to read as follows:
    44    § 51. Action for injunction and for damages. 1.  Applicability.    The
    45  provisions of this article related to the right or privacy and the right
    46  of publicity apply to an act or event that occurs within New York.
    47    2. Right of publicity exceptions. For purposes of the right of public-
    48  ity,  consent  for  use  of  another  individual's  persona shall not be
    49  required, except as otherwise provided in subdivisions three and four of
    50  this section, when used in connection with the following:
    51    (a) news, public affairs or sports broadcast, including the  promotion
    52  of  and advertising for a public affairs or sports broadcast, an account
    53  of public interest or a political campaign;
    54    (b) in:
    55    (i) a play, book, magazine,  newspaper,  musical  composition,  visual
    56  work,  work  of art, audiovisual work, radio or television program if it

        A. 5605                             5
     1  is fictional or nonfictional entertainment, or a dramatic,  literary  or
     2  musical work;
     3    (ii)  a work of political, public interest or newsworthy value includ-
     4  ing a comment, criticism, parody, satire or a transformative creation of
     5  a work of authorship; or
     6    (iii) an advertisement or commercial announcement for any of the works
     7  described in paragraph (a) of this subdivision or this paragraph; or
     8    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
     9  stations licensed by the federal communications commission of the United
    10  States,  or  by  not-for-profit advocacy organizations if the use is for
    11  commentary or criticism;
    12    (d) use of the right of publicity of a deceased individual  where  the
    13  licensee  or  successor  in  interest  has failed to register and post a
    14  claim of right under section fifty-h of this article, with the exception
    15  of the safe harbor period listed in subdivision seven of section fifty-h
    16  of this article, until such time as a claim of right has been registered
    17  and posted as required under such section.
    18    (e) Nothing in this section relating to the right of  publicity  shall
    19  be  deemed  to  abrogate  or  otherwise limit other rights or exceptions
    20  otherwise conferred by state and federal case law interpretations as  to
    21  the  applicability  of sections fifty and fifty-one of this article made
    22  prior to the effective date of the chapter of the laws of  two  thousand
    23  nineteen which amended this section.
    24    3.  Digital  replica  for purposes of trade in an expressive work. (a)
    25  Use of a digital replica, as defined in subdivision two of section fifty
    26  of this article, of an individual shall constitute a violation  if  done
    27  without the consent of the individual if the use is:
    28    (i)  in a scripted audiovisual or audio work, or in a live performance
    29  of a dramatic work, in a manner that is intended  to  create,  and  that
    30  does create, the clear impression that the individual represented by the
    31  digital  replica  is  performing,  the  activity  for which he or she is
    32  known, in the role of a fictional character; or
    33    (ii) in a performance of a musical work, in a manner that is  intended
    34  to  create, and that does create, the clear impression that the individ-
    35  ual represented by the digital replica is performing, the  activity  for
    36  which he or she is known, in such musical work; or
    37    (iii)  in an audiovisual work, in a manner that is intended to create,
    38  and that does create, the clear impression that the athlete  represented
    39  by  the digital replica is engaging in an athletic activity for which he
    40  or she is known.
    41    (b) Consent for the use of the digital replica  of  an  individual  as
    42  provided in the provisions of this article shall not be required if such
    43  use is:
    44    (i) for purposes of parody, satire, commentary, or criticism;
    45    (ii  in  a work of political, public interest, or newsworthy value, or
    46  similar work, including a  documentary,  regardless  of  the  degree  of
    47  fictionalization in the work; or
    48    (iii) de minimis or incidental.
    49    4.  Digital  replica  use  in  a pornographic work.   Use of a digital
    50  replica of an individual shall constitute a violation  if  done  without
    51  the  consent  of  the  individual if the use is in an audiovisual porno-
    52  graphic work in a manner that is intended to create and that does create
    53  the impression that the individual represented by the digital replica is
    54  performing.  Nothing in this section shall limit any  other  rights  the
    55  individual  may  have  against  any  party relating to such pornographic
    56  work.

        A. 5605                             6
     1    5. Limited immunity. The owners or employees of any  medium  used  for
     2  advertising  including, but not limited to, newspapers, magazines, radio
     3  and television networks and stations, cable  television  systems,  bill-
     4  boards,  and  transit advertising, who make unauthorized use of an indi-
     5  vidual's  persona  for  the purpose of advertising or trade shall not be
     6  liable for such use under the provisions of this article  unless  it  is
     7  established  that  such owner or employee had knowledge of the unauthor-
     8  ized use, through presence or inclusion, of the individual's persona  in
     9  such advertisement or publication.
    10    6.  Action  for  injunction  and  for damages. Any person whose [name,
    11  portrait, picture or voice] persona is used within this state for adver-
    12  tising purposes [or], for the purposes  of  trade  without  the  written
    13  consent  first  obtained  as [above] provided [may] in the provisions of
    14  this article is entitled to maintain an equitable action in the  supreme
    15  court  of  this state against the person[, firm or corporation] so using
    16  his [name, portrait, picture or voice] or her persona,  to  prevent  and
    17  restrain  the  use thereof; and may also sue and recover damages for any
    18  injuries sustained including an amount equal to  the  greater  of  seven
    19  hundred  fifty dollars or compensatory damages by reason of such use and
    20  if  the  defendant  shall  have  knowingly  used  such  person's  [name,
    21  portrait,  picture  or  voice] persona in such manner as is forbidden or
    22  declared to be unlawful by [section fifty] the provisions of this  arti-
    23  cle  relating  to  the  right  of privacy or the right of publicity, the
    24  [jury] finder of fact, in its discretion, may award  exemplary  damages.
    25  [But  nothing]  A violation of an individual's right of privacy or right
    26  of publicity may occur without regard to whether the use or activity  is
    27  for profit or not-for-profit.
    28    7.  No  defense.  It  shall  not constitute a defense to an action for
    29  violation of an individual's right of privacy or right of publicity that
    30  such violation includes more than one individual.
    31    8. Use and transfer.  Nothing contained in this article  shall  be  so
    32  construed  as to prevent any [person, firm or corporation] individual or
    33  person from selling or otherwise transferring  any  material  containing
    34  such  [name,  portrait,  picture or voice] persona in whatever medium to
    35  any user of such [name, portrait, picture or voice] persona, or  to  any
    36  third  party for sale or transfer directly or indirectly to such a user,
    37  for use in a manner lawful under this article[; nothing].
    38    9. Photographers. Nothing  contained  in  this  article  shall  be  so
    39  construed  as  to  prevent any person[, firm or corporation,] practicing
    40  the profession of photography, from exhibiting [in or about his  or  its
    41  establishment]  or  displaying,  including  in a gallery or on an online
    42  portfolio specimens of the work of such [establishment, unless the  same
    43  is  continued  by  such person, firm or corporation after written notice
    44  objecting thereto has been given by the person portrayed;  and  nothing]
    45  photographer, or from making specimens of the work available for licens-
    46  ing  purposes  in so far as the licensed use does not violate this arti-
    47  cle. A photographer shall not be liable if the use of the photograph was
    48  not authorized by the photographer.
    49    10. Manufacturers, writers, composers and artists.  Nothing  contained
    50  in this article shall be so construed as to prevent any person[, firm or
    51  corporation] from using the [name, portrait, picture or voice of] perso-
    52  na  owned  by  any  manufacturer or dealer in connection with the goods,
    53  wares and merchandise manufactured, produced or dealt in  by  [him]  the
    54  manufacturer  which  [he]  has been sold or disposed of with such [name,
    55  portrait, picture or voice] persona used  in  connection  therewith;  or
    56  from using the [name, portrait, picture or voice] persona of any author,

        A. 5605                             7
     1  composer  or  artist  in connection with his or her literary, musical or
     2  artistic productions which he or she has sold or disposed of  with  such
     3  [name, portrait, picture or voice] persona used in connection therewith.
     4    11.  Copyright  owners of a sound recording. Nothing contained in this
     5  section shall be construed to prohibit the copyright owner  of  a  sound
     6  recording from disposing of, dealing in, licensing or selling that sound
     7  recording  to any party, if the right to dispose of, deal in, license or
     8  sell such sound recording has been conferred by contract or other  writ-
     9  ten document by such living person or the holder of such right. [Nothing
    10  contained  in  the  foregoing  sentence  shall  be deemed to abrogate or
    11  otherwise limit any rights or remedies otherwise  conferred  by  federal
    12  law or state law.]
    13    12.  Termination  of  post  mortem  right of publicity. Nothing in the
    14  provisions of this article pertaining to the right of publicity shall be
    15  construed as prohibiting the use of the deceased individual's  right  of
    16  publicity  that occurs after the expiration of forty years following his
    17  or her death.   Nor shall anything in the  provisions  of  this  article
    18  pertaining  to the right of publicity be construed as creating liability
    19  or giving rise to any remedy for any actions or  conduct  involving  the
    20  use of a deceased individual's right of publicity that occurred prior to
    21  the  effective  date of the chapter of the laws of two thousand nineteen
    22  which amended this section.
    23    13. Statute of limitations. Actions brought under  the  provisions  of
    24  this  article  pertaining  to  the right of publicity shall be commenced
    25  within one year of the date of discovery of the injury to the  plaintiff
    26  or  from  the  date  through  the  exercise of due diligence such injury
    27  should have been discovered by the plaintiff, whichever is earlier.
    28    § 5. The section heading and subdivision 3 of section 215 of the civil
    29  practice law and rules are amended to read as follows:
    30    Actions to be commenced within one year: against sheriff,  coroner  or
    31  constable; for escape of prisoner; for assault, battery, false imprison-
    32  ment, malicious prosecution, libel or slander; for violation of right of
    33  privacy  or  the  right  of publicity; for penalty given to informer; on
    34  arbitration award.
    35    3. an action to recover damages for assault, battery, false  imprison-
    36  ment, malicious prosecution, libel, slander, false words causing special
    37  damages,  or a violation of the right of privacy or the right of public-
    38  ity under [section fifty-one] article five of the civil rights law;
    39    § 6. Severability clause. If any clause, sentence, paragraph, subdivi-
    40  sion, section or part of this act shall be  adjudged  by  any  court  of
    41  competent  jurisdiction  to  be invalid, such judgment shall not affect,
    42  impair, or invalidate the remainder thereof, but shall  be  confined  in
    43  its  operation  to the clause, sentence, paragraph, subdivision, section
    44  or part thereof directly involved in the controversy in which such judg-
    45  ment shall have been rendered. It is hereby declared to be the intent of
    46  the legislature that this act would  have  been  enacted  even  if  such
    47  invalid provisions had not been included herein.
    48    § 7. This act shall take effect on the one hundred eightieth day after
    49  it  shall  have  become a law, and shall apply to all living individuals
    50  and deceased individuals who died on or after such date.
feedback