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
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. LBD05914-02-9A. 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 or22corporation that uses for advertising purposes, or for the purposes of23trade, the name, portrait or picture of any living person without having24first obtained the written consent of such person, or if a minor of his25or 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 theA. 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 itA. 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,11portrait, 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,21portrait, 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 its41establishment] or displaying, including in a gallery or on an online 42 portfolio specimens of the work of such [establishment, unless the same43is continued by such person, firm or corporation after written notice44objecting 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 or51corporation] 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,55portrait, 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. [Nothing10contained in the foregoing sentence shall be deemed to abrogate or11otherwise limit any rights or remedies otherwise conferred by federal12law 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.