A07904 Summary:

BILL NOA07904
 
SAME ASSAME AS S05650
 
SPONSORMorelle
 
COSPNSRSantabarbara, Simotas, Hevesi, Titone, Titus
 
MLTSPNSREnglebright
 
Add Art 3-A SS30 - 37, Civ Rts L; amd S215, CPLR
 
Provides that a property right exists in a deceased individual's persona for seventy years after the death of the individual.
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A07904 Actions:

BILL NOA07904
 
05/29/2015referred to judiciary
01/06/2016referred to judiciary
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A07904 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7904
 
SPONSOR: Morelle
  TITLE OF BILL: An act to amend the civil rights law and the civil practice law and rules, in relation to the right of publicity   SUMMARY OF PROVISIONS: Section, 1 - Amends the Civil Rights Law by adding a new article 3-A Adds a new section 30 - Definitions. Adds a new section 31 - Property right established. Adds a new section 32 - Prohibited uses Adds a new section 33 - Consent Adds a new section 34 - Exemptions from use restrictions. Adds a new section 35 - Applicability Adds a new section 36 - Remedies Adds a new section 37 - Enforcement of rights Section 2 - Amends Subdivision 3 of section 215 of the civil practice law and rules. Section 3 - Provides for a savings clause to prevent impairment of the act. Section 4- Effective date.   JUSTIFICATION: This bill provides for a "right of publicity" for deceased personalities and grants this property right to a deceased personality's estate for a term of seventy (70) years following their death. This right of public- ity would safeguard the significant and cherished right of deceased personalities in New York while simultaneously protecting the First Amendment considerations of interested parties and businesses. This balanced approach will provide important protections against commercial exploitation of the name, portrait, picture, voice, signature, photo- graph, image, likeness, bodies of work or similar matters relating to a deceased personality. This legislation also limits the enforcement of the prohibitions outlined in the bill to seventy (70) years following the death of a personality. New York's deceased personalities, in many instances, spent entire careers building reputations and bodies of work that are a property right that should not be extinguished with their passing. This property right should also be protected after their pass- ing and may be transferred by written contract or testamentary instru- ment. This bill would protect the legitimate and authorized commercial use of the right of publicity for deceased individuals while providing protections from unscrupulous individuals or entities attempting to commercially exploit.   LEGISLATIVE HISTORY: New Bill   FISCAL IMPLICATIONS: None to the State   EFFECTIVE DATE: This act shall take effect one year after it shall become a law.
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A07904 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7904
 
                               2015-2016 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 29, 2015
                                       ___________
 
        Introduced  by M. of A. MORELLE -- read once and referred to the Commit-
          tee on Judiciary
 
        AN ACT to amend the civil rights law and  the  civil  practice  law  and
          rules, in relation to 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. The civil rights law is amended by adding a new article 3-A
     2  to read as follows:
     3                                 ARTICLE 3-A
     4                             RIGHT OF PUBLICITY
     5  Section 30. Definitions.
     6          31. Property right established.
     7          32. Prohibited uses.
     8          33. Consent.
     9          34. Exemptions from use restrictions.
    10          35. Applicability.
    11          36. Remedies.
    12          37. Enforcement of rights.
    13    § 30. Definitions. As used in this article:
    14    1. "Commercial purpose" means the use of or reference to any aspect of
    15  an individual's persona in any of the following manners: (a)  on  or  in
    16  connection  with  the  offering  for sale or sale of a place, a product,
    17  merchandise, good, service or business; (b) for advertising or promoting
    18  the purchase or sale of a product, merchandise, good, service  or  busi-
    19  ness; and (c) for the purpose of promoting travel.
    20    2. "Deceased individual" means any natural person who died a domicili-
    21  ary  of the state of New York on or after, or within seventy years prior
    22  to, the effective date of this article.
    23    3. "Person" means a natural person, corporation, partnership,  limited
    24  liability  corporation,  limited liability partnership, trust, estate or
    25  other legal entity.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11099-02-5

        A. 7904                             2
 
     1    4. "Persona" means the  name,  portrait,  picture,  voice,  signature,
     2  photograph,  image, likeness or distinctive appearance, gesture, manner-
     3  isms or other indicia of a deceased individual.
     4    5. "Work of fine art" means:
     5    (a)  a  visual  rendition  including,  but not limited to, a painting,
     6  drawing, sculpture, mosaic, videotape, or photograph;
     7    (b) a work of calligraphy;
     8    (c) a work of graphic art including, but not limited to,  an  etching,
     9  lithograph, serigraph, or offset print;
    10    (d)  a  craft  work  in materials including, but not limited to, clay,
    11  textile, fiber, wood, metal, plastic or glass; or
    12    (e) a work in mixed media including, but not limited  to,  a  collage,
    13  assemblage,  or  work  consisting  of any combination of paragraphs (a),
    14  (b), (c) or (d) of this subdivision.
    15    § 31. Property  right  established.  A  property  right  exists  in  a
    16  deceased  individual's  persona for seventy years after the death of the
    17  individual.
    18    § 32. Prohibited uses. No person shall use for commercial purposes  in
    19  this  state, the persona of any deceased individual without having first
    20  obtained the written consent of the  person  or  persons  identified  in
    21  section  thirty-three  of  this  article  and  who  owns more than fifty
    22  percent of the rights in the deceased individual's persona, or as other-
    23  wise provided in this article.
    24    § 33. Consent. The written consent required by this article  shall  be
    25  exercisable  by  the  person  or  persons who collectively own more than
    26  fifty percent of the rights in  the  deceased  individual's  persona  in
    27  accordance with subdivision one of section thirty-five and section thir-
    28  ty-six  of  this  article. Reasonable reliance upon such written consent
    29  shall be a defense in any action brought under this article.
    30    § 34. Exemptions from use restrictions. The written consent  specified
    31  in  section  thirty-two  of  this  article  shall  not  be  required  in
    32  connection with the use of a deceased  individual's  persona  for  other
    33  than  commercial  purposes or for a use that is permitted under the laws
    34  of the Constitution of the United States or the state of New  York.  For
    35  purposes  of  this  section,  the  following types of uses regardless of
    36  length or format,  appearing  in  any  medium  now  known  or  hereafter
    37  devised,  shall  not  be considered to have used a deceased individual's
    38  persona for commercial purposes so long as such uses do  not  constitute
    39  an  advertisement,  endorsement or solicitation for the sale or purchase
    40  of a product, article of merchandise, good or service,  other  than  for
    41  the  work itself and the work does not contain an image or likeness that
    42  is  primarily  commercial,  not  transformative  and  is  not  otherwise
    43  protected  by  the  First Amendment to the United States Constitution or
    44  New York state constitution:
    45    1. A play, book, graphic novel or other literary or theatrical work;
    46    2. A work of political or newsworthy value concerning public interest,
    47  including a television broadcast or an article, editorial or  commentary
    48  in a magazine, newspaper, newsletter or other periodical;
    49    3.  An  original musical composition, musical sound recording or other
    50  similar musical work;
    51    4. A documentary, film, motion picture, television  program  or  other
    52  similar audiovisual work; or
    53    5. An original work of fine art or a work of fine art reproduction.
    54    §  35.  Applicability. 1. The rights recognized under this article are
    55  expressly made retroactive and shall be deemed to have  existed  at  the
    56  time  of  death of any individual who died within seventy years prior to

        A. 7904                             3
 
     1  the effective date of this article and, except where  such  rights  were
     2  passed,  transferred  or  assigned  prior  to such deceased individual's
     3  death by means of any written contract or  trust  instrument,  shall  be
     4  deemed  to have vested in the person or persons entitled to these rights
     5  under the testamentary instrument of the deceased  individual  effective
     6  as  of  the  date of his or her death. In the absence of a transfer in a
     7  testamentary instrument of the persona of a deceased  individual  recog-
     8  nized  under  this  section,  a provision in the testamentary instrument
     9  that provides for the disposition of the residue of the  deceased  indi-
    10  vidual's assets shall be effective to transfer the deceased individual's
    11  persona  in  accordance  with  the  terms  of that provision. If no such
    12  contract, trust or testamentary instrument exists or existed at the time
    13  of the death of the deceased  individual,  then  such  rights  shall  be
    14  deemed to have passed in accordance with the laws of intestacy in effect
    15  at  the time of the deceased individual's death, provided, however, that
    16  if there are or were at the time of the deceased individual's  death  no
    17  surviving  natural  persons  to  whom  such  rights would have passed by
    18  intestate succession, then such rights shall  terminate  or  shall  have
    19  been deemed to have terminated.
    20    2. A deceased individual's persona is personal property, freely trans-
    21  ferable  or descendable, in whole or in part, by contract or by means of
    22  any trust or testamentary instrument, whether such  contract,  trust  or
    23  testamentary instrument was entered into or executed before or after the
    24  effective date of this article.
    25    3.  Nothing  in this section shall be construed as prohibiting the use
    26  of the deceased individual's persona that occurs after the expiration of
    27  seventy years following the death of that deceased individual. Nor shall
    28  anything in this section be construed as creating  liability  or  giving
    29  rise  to  any  remedy  for any actions or conduct involving the use of a
    30  deceased individual's persona that occurred prior to the effective  date
    31  of this article.
    32    4.  (a) This article shall not prohibit the use of a deceased individ-
    33  ual's persona to accurately identify that  deceased  individual  as  the
    34  author  of  or  contributor  to a work or as the performer of a recorded
    35  performance, under circumstances in which the work or recorded  perform-
    36  ance is otherwise lawfully used, reproduced, exhibited or broadcast.
    37    (b)  This  article shall not prohibit the use of the deceased individ-
    38  uals' persona to accurately identify their place of burial.
    39    5. No person possessing rights or  title,  however  held,  in  a  work
    40  encompassing  any  aspect  or aspects of a deceased individual's persona
    41  shall be liable under this article for licensing or otherwise  authoriz-
    42  ing  the  use of such work by a third party, or for displaying images of
    43  such work as available for license or similar use by a third  party,  so
    44  long  as  such  person does not: (a) know or intend that the third party
    45  plans to use such work to engage in an unauthorized use of the  deceased
    46  individual's  persona  as  prohibited  by  this article; or (b) does not
    47  warrant or represent that the  third  party  may  use  the  licensed  or
    48  authorized  aspect  of  the deceased individual's persona for commercial
    49  purposes without first obtaining the written consent required by section
    50  thirty-two of this article. In the event that such third party  licensee
    51  intended  to  use  any  aspect of a deceased individual's persona encom-
    52  passed in such work for commercial purposes without the prior  knowledge
    53  and  intent of the licensing or authorizing person, it shall be the sole
    54  responsibility of the third party licensee to obtain the written consent
    55  required by section thirty-two of this article.

        A. 7904                             4
 
     1    6. Unless otherwise agreed to in writing, only the persons who actual-
     2  ly authorize, provide for services, manufacture or otherwise  create  an
     3  advertisement,  product, article of merchandise, good or service embody-
     4  ing a deceased individual's persona shall be responsible  for  obtaining
     5  the  written  consent  required by section thirty-two of this article. A
     6  distributor or transmitter of such an advertisement, product, article of
     7  merchandise, good or service shall not be liable for  any  violation  of
     8  this  article,  unless  such  distributor  or  transmitter intentionally
     9  engages in an unauthorized use of a  deceased  individual's  persona  as
    10  prohibited by this article, knowing that such use requires consent.
    11    §  36.  Remedies. In the event the consent required in section thirty-
    12  two of this article is not obtained, any person having the right to give
    13  such consent as provided in section  thirty-two  of  this  article,  may
    14  bring an action to enjoin such unauthorized use for commercial purposes,
    15  and to recover damages for any loss or injury sustained by reason there-
    16  of,  including an amount which would have been a reasonable royalty, and
    17  punitive or exemplary damages.
    18    § 37. Enforcement of rights. 1. Any action to enforce  the  provisions
    19  of  this  article shall be subject to the one-year limitation period set
    20  forth in subdivision three of section two hundred fifteen of  the  civil
    21  practice  law  and rules and may only be commenced in connection with an
    22  unauthorized use for commercial purposes that occurs  on  or  after  the
    23  effective date of this article.
    24    2.  Notwithstanding  any provision of this article to the contrary, if
    25  an action was taken prior to the effective date of this article to exer-
    26  cise rights recognized under this section relating to a  deceased  indi-
    27  vidual who died within seventy years prior to the effective date of this
    28  article  by a person entitled to inherit the deceased individual's prop-
    29  erty under the laws of intestacy in effect at the time of  the  deceased
    30  individual's  death,  other  than  a  person who was disinherited by the
    31  deceased individual in a testamentary instrument, and  the  exercise  of
    32  those  rights  was  not  challenged  successfully in a court action by a
    33  person described in section thirty-three of this article, that  exercise
    34  shall not be affected by section thirty-three of this article. In such a
    35  case,  the  rights  that  would  otherwise  vest  in one or more persons
    36  described in section thirty-three of this article shall vest  solely  in
    37  the  person  or persons described in the laws of intestacy, other than a
    38  person disinherited by the deceased individual in a testamentary instru-
    39  ment, for all future purpose.
    40    § 2. Subdivision 3 of section 215 of the civil practice law and  rules
    41  is amended to read as follows:
    42    3.  an action to recover damages for assault, battery, false imprison-
    43  ment, malicious prosecution, libel, slander, false words causing special
    44  damages, [or] a violation of the right of privacy under  section  fifty-
    45  one  of  the  civil  rights law or a violation of the right of publicity
    46  under article 3-A of the civil rights law;
    47    § 3. Severability. If any clause, sentence, paragraph, section or part
    48  of this act shall be adjudged by any court of competent jurisdiction  to
    49  be  invalid,  such  judgment  shall not affect, impair or invalidate the
    50  remainder thereof, but shall be confined in its operation to the clause,
    51  sentence, paragraph, section or part thereof directly  involved  in  the
    52  controversy in which such judgment shall have been rendered.
    53    §  4. This act shall take effect one year after it shall have become a
    54  law.
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