Bill Text: NY S02477 | 2023-2024 | General Assembly | Amended
Bill Title: Provides for the registration and duties of model management companies; provides complaint procedures and penalties for violations.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Engrossed) 2024-04-15 - AMENDED ON THIRD READING 2477D [S02477 Detail]
Download: New_York-2023-S02477-Amended.html
STATE OF NEW YORK ________________________________________________________________________ 2477--D Cal. No. 700 2023-2024 Regular Sessions IN SENATE January 20, 2023 ___________ Introduced by Sens. HOYLMAN-SIGAL, ADDABBO, CLEARE, GOUNARDES, JACKSON -- read twice and ordered printed, and when printed to be committed to the Committee on Labor -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- recommitted to the Committee on Labor in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading AN ACT to amend the labor law, in relation to enacting the New York state fashion workers act The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. The labor law is amended by adding a new article 36 to read 2 as follows: 3 ARTICLE 36 4 NEW YORK STATE FASHION WORKERS ACT 5 Section 1030. Short title. 6 1031. Definitions. 7 1032. Registration required. 8 1033. Registration process. 9 1034. Duties of model management companies. 10 1035. Prohibitions on model management companies. 11 1036. Power of attorney. 12 1037. Duties of clients. 13 1038. Prohibitions on clients. 14 1039. Violations, penalties and procedures. 15 1040. Other legal requirements. EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD02078-08-4S. 2477--D 2 1 § 1030. Short title. This article shall be known and may be cited as 2 the "New York state fashion workers act". 3 § 1031. Definitions. As used in this article: 4 1. "Client" means a retail store, a manufacturer, a clothing designer, 5 an advertising agency, a photographer, a publishing company or any other 6 such person or entity that receives modeling services from a model, 7 directly or through intermediaries. 8 2. "Model" means an individual, regardless of the individual's status 9 as an independent contractor or employee, who performs modeling services 10 for a client and/or model management company or who provides showroom, 11 parts, or fit modeling services. 12 3. "Model management company" means any person or entity, other than a 13 person or entity licensed as an employment agency under article eleven 14 of the general business law, that: 15 (a) is in the business of managing models participating in enter- 16 tainments, exhibitions or performances; 17 (b) procures or attempts to procure, for a fee, employment or engage- 18 ments for persons seeking employment or engagements as models; or 19 (c) renders vocational guidance or counselling services to models for 20 a fee. 21 4. "Modeling services" means the appearance by a model in photographic 22 sessions or the engagement of a model in live runway, live, filmed, or 23 taped performances, including on social media platforms, requiring the 24 model to pose, provide an example or standard of artistic expression or 25 to be a representation to show the construction or appearance of some 26 thing or place for purposes of display or advertising, including the 27 provisions of castings, fittings, photoshoots, showroom, parts or fit 28 modeling services. "Modeling services" includes the use of a digital 29 replica. 30 5. "Exclusive representation" means an agreement, or a clause 31 contained in an agreement, entered into between a model management 32 company and a model that restricts such model from performing work for 33 another party not subject to such agreement for a specified period of 34 time or in a specified geographical area, that is similar to such 35 model's work for the model management company. 36 6. "Department" means the department of labor and "commissioner" means 37 the commissioner of labor, except that a city with a population of one 38 million or more may, by local law, designate a city agency to enforce 39 the provisions of this article within the jurisdiction of such city, in 40 which case "department" shall refer to the agency designated by such 41 local law and "commissioner" shall refer to the head of such agency. 42 7. "Deal memo" means a plain language written summary in a language 43 the model sufficiently understands of the key terms of any employment, 44 engagement, entertainment, exhibition, or performance, including but not 45 limited to the scope of work, rate of pay, payment term, usages, 46 incurred expenses, and expectations of the model. 47 8. "Digital replica" means a significant, computer-generated or arti- 48 ficial intelligence-enhanced representation of a model's likeness, 49 including but not limited to, their face, body, or voice, which substan- 50 tially replicates or replaces the model's appearance or performance, 51 excluding routine photographic edits such as color correction, minor 52 retouching, or other standard post-production modifications. 53 § 1032. Registration required. A model management company shall not 54 engage in business from offices in this state or enter into any arrange- 55 ment with a person for the purpose of providing model management company 56 services to persons in this state unless the model management company isS. 2477--D 3 1 registered under this article. No person shall use the name or title 2 "modeling agency", "model management company", or otherwise represent 3 that it is registered under this article unless the entity or person is 4 registered under this article. A model management company that does not 5 comply with the provisions of this article shall not be a registered 6 model management company in this state. 7 § 1033. Registration process. 1. Except as otherwise provided in this 8 section, each model management company required to be registered under 9 this article shall provide the department with information required by 10 the department on forms that the department specifies. At a minimum, 11 model management companies shall provide the following information: 12 (a) all names under which it conducts business; 13 (b) the address of the principal place of business of the model 14 management company and the address of each office it maintains in New 15 York state; 16 (c) the model management company's taxpayer or employer identification 17 number; 18 (d) a list by jurisdiction of each name under which the model manage- 19 ment company has operated in the preceding five years, including any 20 alternative names, names of predecessors and, if known, successor busi- 21 ness entities; and 22 (e) in the event the model management company or the ultimate parent 23 of a model management group is a privately or closely held company, the 24 model management company or model management group shall file a list of 25 all persons or entities that beneficially own a five percent or greater 26 interest in the model management company at the time of application and 27 a list of persons who formerly beneficially owned a five percent or 28 greater interest in the model management company or its predecessors in 29 the preceding five years. In the event the model management company or 30 the ultimate parent of a model management group is a publicly traded 31 company, the model management company or model management group shall 32 file a list of all persons or entities that beneficially own a fifty 33 percent or greater interest in the model management company or the ulti- 34 mate parent of the model management group at the time of application. 35 2. Each model management company operating within this state shall 36 complete its initial registration within one year after the effective 37 date of this article. 38 3. Within two years of the initial registration or any renewal regis- 39 tration, each registrant shall renew its registration by notifying the 40 department of any changes in the information previously provided pursu- 41 ant to this section. 42 4. Upon application for registration, a model management company or 43 model management group with more than five employees that either work 44 from a location in this state or perform work relating to models in this 45 state shall deposit with the department a surety bond in the sum of 46 fifty thousand dollars. 47 5. Every person licensed under the provisions of this article to carry 48 on the business of a model management company or model management group 49 shall pay to the commissioner a license fee in accordance with the 50 following schedule before such license is issued. The minimum fee for 51 said license shall be five hundred dollars, and for a model management 52 company or model management group operating with more than four place- 53 ment employees, seven hundred dollars, provided, however, that if the 54 license is to run less than one year, the fee shall be two hundred fifty 55 dollars and three hundred fifty dollars respectively, and if the license 56 is to run less than six months, the fee shall be one hundred twenty-fiveS. 2477--D 4 1 dollars and one hundred seventy-five dollars respectively. For the 2 purpose of determining the license fee which a model management company 3 or model management group shall pay, the applicant for such license 4 shall state in the application to the commissioner the average number of 5 placement employees employed by the applicant's model management company 6 or model management group during the preceding calendar year; or, in the 7 event that the applicant has not previously conducted a model management 8 company or model management group under the provisions of this article, 9 he or she shall state the average number of placement employees which he 10 or she reasonably expects will be employed by the model management 11 company or model management group during the calendar year in which the 12 license is issued. If the application for a license is denied or with- 13 drawn, one-half of the license fee provided herein shall be returned to 14 the applicant. 15 6. Two or more model management companies that are majority owned by 16 the same ultimate parent, entity or persons may be registered as a model 17 management group. A model management group may satisfy any reporting and 18 financial requirements of this article on a consolidated basis. As a 19 condition of registration as a model management group, each company that 20 is a member of the group shall guarantee payment of all financial obli- 21 gations of each other member. 22 7. A model management company shall be exempt from the registration 23 requirements specified in this section if such model management company: 24 (a) submits a properly executed request for registration and exemption 25 on a form provided by the department; 26 (b) is domiciled outside this state and is licensed or registered as a 27 model management company in another state that has the same or greater 28 requirements as this article; and 29 (c) does not maintain an office in this state or solicit in any manner 30 clients located or domiciled within this state. 31 8. The registration and exemption of a model management company under 32 subdivision seven of this section shall be valid for two years. 33 9. The department shall maintain a list of model management companies 34 registered under this article and shall issue a certificate of registra- 35 tion to each model management company duly registered. 36 10. The department may prescribe forms necessary to promote the effi- 37 cient administration of this section. 38 § 1034. Duties of model management companies. A model management 39 company shall: 40 1. be deemed to have a fiduciary duty to the models they represent and 41 shall be required to act in good faith, with the utmost honesty and 42 integrity, in the best interests of the models. This fiduciary duty 43 shall encompass all aspects of the model management company's represen- 44 tation, including, but not limited to, negotiations, contracts, finan- 45 cial management, and the protection of the models' legal and financial 46 rights; 47 2. conduct due diligence to ensure that any employment or engagement 48 booked through the model management company does not pose an unreason- 49 able risk of danger to the model. An unreasonable risk of danger shall 50 include, but not be limited to, failing to establish and communicate a 51 zero tolerance policy for abuse, harassment, or any other form of inap- 52 propriate behavior; 53 3. use its best efforts to procure employment, engagements, enter- 54 tainments, exhibitions or performances for a fee for models signed to 55 the model management company;S. 2477--D 5 1 4. ensure that any employment, engagement, entertainment, exhibition 2 or performance which requires nudity or other sexually explicit material 3 shall comply with the requirements of subdivision three of section 4 fifty-two-c of the civil rights law, as added by chapter three hundred 5 four of the laws of two thousand twenty; 6 5. provide models with physical or digital copies of the final agree- 7 ments the model management company has negotiated with clients and deal 8 memos memorializing such agreements, at least twenty-four hours prior to 9 the commencement of a model's services pertaining to each agreement, in 10 a language the model sufficiently understands; 11 6. clearly specify all items that may be initially paid for by the 12 model management company but will ultimately be deducted from the 13 compensation due to the model at the time of payment or settlement, 14 together with an itemized recitation as to how each item is to be 15 computed, provided such charges are not otherwise prohibited by this 16 article. On a quarterly basis, a model shall also be given copies of any 17 and all documentation held by or available to the model management 18 company necessary to determine the validity of each charge; 19 7. disclose any financial relationship, contractual or otherwise, 20 that may exist between the model management company and the client, 21 other than the agreement relating specifically to modeling services; 22 8. notify former models in writing, including email, if the model 23 management company collects royalties due to a model whom the management 24 company no longer represents; 25 9. post a physical copy of the model management company's certificate 26 of registration in a conspicuous place in the office of the model 27 management company and a digital copy on the model management company's 28 website; 29 10. include, in clear and legible type, the registration number of the 30 model management company in any advertisement, including social media 31 profiles for the model management company, for the purpose of the solic- 32 itation of models for the model management company and in any contract 33 with a model or client; 34 11. submit to the department a form or forms of contract to be 35 utilized by such model management company in entering into written 36 contracts with models for the employment or engagement of the services 37 of such model management company by such models, and secure the approval 38 of the department thereof, provided the department shall not withhold 39 approval unless such proposed form of contract is unfair, unjust and 40 oppressive to the model; and 41 12. obtain clear written consent for the creation or use of a model's 42 digital replica, detailing the scope, purpose, rate of pay, and duration 43 of such use. This consent must be obtained separately from the represen- 44 tation agreement. 45 § 1035. Prohibitions on model management companies. A model management 46 company shall not: 47 1. require or collect any fee or deposit from a model upon the signing 48 of, or as a condition to entering into, any contract or agreement 49 between the model management company and the model; 50 2. charge more than the daily fair market rate for accommodation for 51 the model; 52 3. book any accommodation, payment of which shall be provided or reim- 53 bursed by the model in any way, without providing a written disclosure 54 of the rate charged for the accommodation to the model in advance of 55 such model's stay at the accommodation;S. 2477--D 6 1 4. deduct or offset from a model's payment or compensation any fee or 2 expense other than the agreed upon commission as set forth in the 3 contract and any items advanced pursuant to subdivision six of section 4 one thousand thirty-four of this article. Such prohibited fees and 5 expenses include but are not limited to website fees, accommodation 6 fees, delivery fees, and interest on payment of the model's earnings; 7 5. advance the cost of travel without informed written consent from 8 the model; 9 6. require a model to sign a model management company contract that 10 contains a term greater than three years; 11 7. require a model to sign a model management company contract that 12 renews without the model's affirmative written consent; 13 8. impose a commission fee greater than twenty percent of the model's 14 payment or compensation; 15 9. take any retaliatory action against any model who files or attempts 16 to file a complaint pursuant to this article or declines or discontinues 17 participation in any casting or booking on account of reasonable, good 18 faith concerns regarding an actual or potential violation of this arti- 19 cle; or 20 10. engage in discrimination or harassment of any kind against a model 21 because of any protected status covered under paragraph (a) of subdivi- 22 sion one of section two hundred ninety-six of the executive law; or 23 11. create, alter, or manipulate a model's digital replica using arti- 24 ficial intelligence without clear, conspicuous and separate written 25 consent from the model. 26 § 1036. Power of attorney. 1. Any power of attorney agreement between 27 a model management company and a model shall: 28 (a) be presented as an optional component of the model management 29 company's representation agreement to which the model can opt in or out; 30 (b) not be presented as a necessary condition of entering into an 31 agreement with the model management company; 32 (c) be subject to termination by the model at any time and for any 33 reason; 34 (d) not violate the provisions of subdivision one of section one thou- 35 sand thirty-four of this article; and extend only to matters directly 36 related to the provision of modeling services, with the exclusion of the 37 use of the model's digital replica. 38 2. Any power of attorney agreement that violates this section shall be 39 considered void as a matter of public policy. 40 § 1037. Duties of clients. A client shall: 41 1. compensate models at an hourly rate at least fifty percent higher 42 than the contracted hourly rate for any employment, engagement, enter- 43 tainment, exhibition or performance that exceeds eight hours in any 44 twenty-four hour period; 45 2. provide at least one thirty minute meal break for any employment, 46 engagement, entertainment, exhibition or performance that exceeds eight 47 hours in any twenty-four hour period; 48 3. only offer an employment or engagement to a model that does not 49 pose an unreasonable risk of danger to the model. An unreasonable risk 50 of danger shall include, but not be limited to, failure to establish and 51 communicate a zero tolerance policy for abuse, harassment, or any other 52 form of inappropriate behavior; 53 4. ensure that any employment, engagement, entertainment, exhibition 54 or performance which requires nudity or other sexually explicit material 55 shall comply with the requirements of subdivision three of sectionS. 2477--D 7 1 fifty-two-c of the civil rights law, as added by chapter three hundred 2 four of the laws of two thousand twenty; 3 5. allow the model to be accompanied by their agent, manager, chaper- 4 one, or other representative to any employment, engagement, enter- 5 tainment, exhibition or performance; 6 6. provide adequate levels of liability insurance to cover and safe- 7 guard the health and safety of models; and 8 7. obtain clear and conspicuous prior written consent for any creation 9 or use of a model's digital replica, detailing the scope, purpose, rate 10 of pay, and duration of such use. 11 § 1038. Prohibitions on clients. A client shall not: 12 1. engage in discrimination or harassment of any kind against a model 13 because of any protected status covered under paragraph (a) of subdivi- 14 sion one of section two hundred ninety-six of the executive law; or 15 2. create, alter, or manipulate a model's digital replica using arti- 16 ficial intelligence without clear and conspicuous prior written consent 17 from the model. 18 § 1039. Violations, penalties and procedures. 1. Any model management 19 company or person purporting to be a model management company who has 20 failed to comply with the registration requirements of section one thou- 21 sand thirty-two of this article shall be deemed to have violated this 22 article. 23 2. Any model management company or person purporting to be a model 24 management company who has failed to comply within the time specified by 25 law with an order issued by the commissioner to comply with the regis- 26 tration requirements of section one thousand thirty-two of this article 27 shall be deemed to have violated this article. 28 3. Any client who enters into an agreement with a model management 29 company or person purporting to be a model management company, who is 30 required to register, but whom the client knows or should have known has 31 failed to register, failed to renew its registration or had its regis- 32 tration revoked by the commissioner shall be deemed to have violated 33 this article. 34 4. (a) The commissioner may impose a civil penalty upon a model 35 management company, a person purporting to be a model management compa- 36 ny, and all persons or entities that own a five percent or greater 37 interest in the model management company, that have been deemed to have 38 violated this article, for no more than three thousand dollars for the 39 initial violation, and for no more than five thousand dollars for a 40 second or subsequent violation. 41 (b) The commissioner may impose a civil penalty upon any client 42 described in subdivision three of this section that has been deemed to 43 have violated this article, for no more than three thousand dollars for 44 the initial violation, and for no more than five thousand dollars for a 45 second or subsequent violation. 46 (c) The order imposing such civil penalty may be served personally or 47 by certified mail at the last known mailing address of the person being 48 served. Such order shall be in writing and shall describe the nature of 49 the violation, including reference to the provisions of subdivisions 50 one, two and three of this section alleged to have been violated. 51 5. An order issued under this section shall be final and not subject 52 to review by any court or agency unless a review is had pursuant to 53 section one hundred one of this chapter. Provided that no proceeding for 54 administrative or judicial review as provided in this chapter shall then 55 be pending and the time for initiation of such proceeding shall have 56 expired, the commissioner may file with the county clerk of the countyS. 2477--D 8 1 where the person against whom the penalty has been imposed has a place 2 of business the order of the commissioner or the decision of the indus- 3 trial board of appeals containing the amount of the civil penalty. The 4 filing of such order or decision shall have the full force and effect of 5 a judgment duly docketed in the office of such clerk. The order or deci- 6 sion may be enforced by and in the name of the commissioner in the same 7 manner, and with like effect, as that prescribed by the civil practice 8 law and rules for the enforcement of a money judgment. 9 6. If any model management company or person purporting to be a model 10 management company shall have failed to comply within twenty days of an 11 order by the commissioner to register or renew registration, the commis- 12 sioner may seek to enjoin such unlawful activity, pursuant to the civil 13 practice law and rules. 14 7. An aggrieved model may bring and maintain an action in a court of 15 competent jurisdiction to enforce the provisions of this article. A 16 model management company, person purporting to be a model management 17 company, or client that violates this article shall be liable for actual 18 damages to any model that has suffered damages due to such violation, 19 reasonable attorneys' fees and costs, and, unless the employer proves a 20 good faith basis to believe that its actions were in compliance with 21 the law, an additional amount as liquidated damages in an amount of no 22 more than one hundred percent of the total amount of actual damages, 23 except such liquidated damages may be up to three hundred percent if 24 found that the actions were willful. 25 8. The attorney general may bring and maintain an action in a court of 26 competent jurisdiction to enforce the provisions of this article when 27 the attorney general has determined there is reasonable cause to believe 28 that a model management company, person purporting to be a model manage- 29 ment company, or client has engaged in repeated fraudulent or illegal 30 acts or otherwise demonstrates persistent fraud or illegality in the 31 carrying on, conducting, or transacting of business. 32 9. (a) A model who is aggrieved by a violation of this article may 33 file a complaint with the commissioner within six years after the acts 34 alleged to have violated this article occurred. The commissioner shall 35 prescribe the form of the complaint, which shall include, at a minimum: 36 (i) the name and mailing address of the model and of the person or 37 entity alleged to have violated this article; 38 (ii) a statement detailing the terms of the model's contract, includ- 39 ing a copy of such contract if available; 40 (iii) the model's occupation; 41 (iv) a statement detailing the alleged violations of this article; and 42 (v) a signed affirmation that all facts alleged in the complaint are 43 true. 44 (b) (i) Within twenty days of receiving a complaint alleging a 45 violation of this article, the commissioner shall send the person or 46 entity named in the complaint a written notice of complaint. The 47 commissioner shall send such notice by certified mail and shall bear the 48 cost of sending such notice. 49 (ii) The notice required by this paragraph shall: 50 (1) inform the person or entity named in the complaint that a 51 complaint has been filed alleging violations of this article; 52 (2) detail the remedies available to a model for violations of said 53 article by the person or entity named in the complaint; 54 (3) include a copy of the complaint; and 55 (4) inform the person or entity named in the complaint that failure to 56 respond to the complaint will create a rebuttable presumption in anyS. 2477--D 9 1 civil action commenced pursuant to this article that such person or 2 entity committed the violations alleged in the complaint. 3 (c) Within twenty days of receiving the notice of complaint, the 4 person or entity identified in the complaint shall send the commissioner 5 one of the following: 6 (i) a written statement that the model has been paid in full and proof 7 of such payment; or 8 (ii) a written statement that the model has not been paid in full and 9 the reasons for the failure to provide such payment. 10 (d) (i) Within twenty days of receiving the written response, the 11 commissioner shall send the model a copy of: 12 (1) the response; 13 (2) any enclosures submitted to the commissioner with the response; 14 (3) materials informing the model that the model may bring an action 15 in a court of competent jurisdiction; and 16 (4) any other information about the status of the complaint. 17 (ii) If the commissioner receives no response from the person or enti- 18 ty alleged to have violated this article to the notice of complaint 19 within the time provided by this subdivision, the commissioner shall 20 mail a notice of non-response to both the model and the person or entity 21 named in the complaint by regular mail and shall include with such 22 notice proof that the commissioner previously mailed the notice of 23 complaint to the person or entity named in the complaint by certified 24 mail. Upon satisfying the requirements of this paragraph, the commis- 25 sioner may close the case. 26 § 1040. Other legal requirements. Nothing in this article shall dimin- 27 ish the rights, privileges, wages, working conditions or remedies of any 28 employee under any applicable collective bargaining agreement. 29 § 2. This act shall take effect on the one hundred eightieth day after 30 it shall have become a law. Effective immediately, the addition, amend- 31 ment and/or repeal of any rule or regulation necessary for the implemen- 32 tation of this act on its effective date are authorized to be made and 33 completed on or before such effective date.
