A08155 Summary:

BILL NOA08155A
 
SAME ASSAME AS S05857-A
 
SPONSORMorelle
 
COSPNSRWeinstein, Sepulveda, DenDekker
 
MLTSPNSR
 
Ren 50 to be 50-f, add 50, 50-g, 50-h & 50-i, amd 50-f & 51, Civ Rts L; amd 215, CPLR
 
Establishes the right of publicity for both living and deceased individuals; provides that an individual's name, voice, signature and likeness is the personal property of the individual and is freely transferable and descendible; provides for the registration with the department of state of such rights of a deceased individual; and establishes a 1 year statute of limitations for commencing a cause of action for the violation of such right.
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A08155 Actions:

BILL NOA08155A
 
05/31/2017referred to judiciary
06/07/2017reported referred to codes
06/14/2017reported referred to ways and means
06/14/2017amend and recommit to ways and means
06/14/2017print number 8155a
06/19/2017reported referred to rules
06/20/2017reported
06/20/2017rules report cal.564
06/20/2017ordered to third reading rules cal.564
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A08155 Committee Votes:

JUDICIARY Chair:Weinstein DATE:06/07/2017AYE/NAY:17/2 Action: Favorable refer to committee Codes
WeinsteinAyePalumboAye
DinowitzAyeMontesanoAye
TitusExcusedBarclayAye
LavineAyeGoodellNay
ZebrowskiAyeGrafAye
WeprinAyeLupinacciAye
BraunsteinAye
SimotasExcused
QuartAye
TitoneNay
BuchwaldAye
SteckAye
SeawrightAye
SimonAye
JoynerAye

CODES Chair:Lentol DATE:06/14/2017AYE/NAY:17/4 Action: Favorable refer to committee Ways and Means
LentolAyeGrafNay
SchimmingerAyeGiglioNay
WeinsteinAyeMcKevittNay
PretlowAyeMontesanoNay
CookAbsentRaAye
CymbrowitzAyeMorinelloAye
TitusAye
O'DonnellAye
LavineAye
PerryAye
ZebrowskiAye
AbinantiAye
WeprinAye
MosleyAye
HevesiAye
FahyAye

WAYS AND MEANS Chair:Farrell DATE:06/19/2017AYE/NAY:30/4 Action: Favorable refer to committee Rules
FarrellAyeOaksAye
LentolAyeCrouchAye
SchimmingerNayBarclayAye
GanttAyeFitzpatrickNay
WeinsteinAyeHawleyAye
GlickAyeMalliotakisNay
NolanAyeWalterAye
PretlowAyeMontesanoNay
PerryAyeCurranAye
ColtonAyeRaAye
CookAye
CahillAye
AubryAye
HooperAye
ThieleAye
CusickAye
OrtizAye
BenedettoAye
MoyaAye
WeprinAye
RodriguezExcused
RamosAye
BraunsteinAye
McDonaldAye
RozicAye

RULES Chair:Heastie DATE:06/20/2017AYE/NAY:27/0 Action: Favorable
HeastieAyeKolbAye
GottfriedAyeOaksAye
LentolAyeButlerExcused
FarrellAyeCrouchAye
GanttAyeFinchExcused
NolanExcusedBarclayAye
WeinsteinAyeRaiaAye
HooperAyeHawleyAye
OrtizAye
PretlowAye
CookAye
GlickAye
MorelleAye
AubryAye
EnglebrightAye
DinowitzAye
ColtonAye
MagnarelliAye
PerryAye
GalefAye
PaulinAye
TitusExcused
Peoples-StokesAye

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A08155 Floor Votes:

There are no votes for this bill in this legislative session.
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A08155 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         8155--A
 
                               2017-2018 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 31, 2017
                                       ___________
 
        Introduced  by  M. of A. MORELLE, WEINSTEIN -- read once and referred to
          the Committee on Judiciary -- reported and referred to  the  Committee
          on  Ways  and  Means  --  committee  discharged, bill amended, ordered
          reprinted as amended and recommitted to said committee
 
        AN ACT to amend the civil rights  law,  in  relation  to  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. "Characteristic" means a distinctive appearance, gesture or manner-
     7  ism recognized as an identifying attribute of an individual.
     8    2.  "Deceased  individual"  means any individual, including his or her
     9  name, voice, signature or likeness, regardless of the individual's place
    10  of domicile, residence or citizenship at the time of death or otherwise,
    11  who has died.
    12    3. "Secretary" means the secretary of state.
    13    4. "Fund-raising" means an organized activity to solicit donations  of
    14  money  or  other goods or services from persons or entities by an organ-
    15  ization, company or public entity.
    16    5. "Individual" means a natural person, living or dead.
    17    6. "Likeness" means an image, digital replica,  photograph,  painting,
    18  sketching,  model,  diagram,  or other recognizable representation of an
    19  individual's face or body, and includes a  characteristic.    A  digital
    20  replica  is  a computer-generated or electronic, photo-realistic reprod-
    21  uction of an individual's likeness, whether animated or static.
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD11384-04-7

        A. 8155--A                          2
 
     1    7. "Name" means the actual or assumed name, or nickname, of  a  living
     2  or deceased individual that identifies that individual.
     3    8.  "Person" means any natural person, firm, association, partnership,
     4  corporation, company, syndicate, receiver, common law  trust,  conserva-
     5  tor,  statutory  trust,  or  any  other entity by whatever name known or
     6  however organized, formed or created, and includes not-for-profit corpo-
     7  rations, associations, educational and religious institutions, political
     8  parties, and community, civic or other organizations.
     9    9. "Photograph" means any  photograph  or  photographic  reproduction,
    10  still  or  moving,  or  any  videotape, online or live television trans-
    11  mission, of any individual, in which the individual is readily identifi-
    12  able.
    13    10. "Registration to establish a claim of right" means a  registration
    14  by  a  person  claiming  to  be  a successor in interest in the right of
    15  publicity of a deceased individual with the department of state.
    16    11.  "Right of publicity" includes the right of privacy, and means  an
    17  individual's  name,  voice,  signature  and  likeness,  individually and
    18  collectively known as his or her right of publicity.
    19    12.  "Signature" means a handwritten or otherwise legally binding form
    20  of an individual's name, written or authorized by that individual,  that
    21  distinguishes the individual from all other individuals.
    22    §  2.  Section  50-f of the civil rights law, as renumbered by section
    23  one of this act, is amended to read as follows:
    24    § 50-f. Right of [privacy] publicity for living and deceased  individ-
    25  uals. [A person, firm or corporation that uses for advertising purposes,
    26  or  for  the  purposes  of  trade,  the name, portrait or picture of any
    27  living person without having first obtained the written consent of  such
    28  person,  or  if a minor of his or her parent or guardian, is guilty of a
    29  misdemeanor.] A living or deceased individual's name,  voice,  signature
    30  and likeness, individually and collectively known as his or her right of
    31  publicity,  is personal property, freely transferable or descendible, in
    32  whole or in part, by contract or by means of any trust  or  testamentary
    33  instrument,  whether such contract, trust or testamentary instrument was
    34  entered into or executed before or after the effective date of the chap-
    35  ter of the laws of two thousand seventeen which  amended  this  section.
    36  Such  right of publicity shall not be used without obtaining the written
    37  consent of the individual, his or her successors or assigns as  provided
    38  for in the provisions of this article pertaining to the right of public-
    39  ity or, in the case of a minor, of his or her parent or guardian.
    40    §  3.  The  civil  rights  law is amended by adding three new sections
    41  50-g, 50-h and 50-i to read as follows:
    42    § 50-g. Duration of an individual's right of publicity. Every individ-
    43  ual's right of publicity shall continue to exist for forty  years  after
    44  his  or her death, and does not expire upon the death of the individual,
    45  regardless of whether the law of the domicile, residence or  citizenship
    46  of the individual at the time of death or otherwise recognizes a similar
    47  or identical property right.
    48    §  50-h.  Methods of transfer and conveyance. 1. The rights recognized
    49  under the provisions of this article pertaining to the right of  public-
    50  ity are freely transferable and descendible, in whole or in part, by the
    51  following:
    52    (a) contract;
    53    (b) license;
    54    (c) gift;
    55    (d) trust;

        A. 8155--A                          3
 
     1    (e)  testamentary document. The rights shall vest in the persons enti-
     2  tled to the right of publicity under the testamentary instrument of  the
     3  deceased individual effective as of the date of that individual's death.
     4  In  the  absence  of an express transfer in a testamentary instrument of
     5  the  deceased individual's right of publicity, a provision in the testa-
     6  mentary instrument that provides for the disposition of the  residue  of
     7  the  deceased  individual's  assets  shall  be effective to transfer the
     8  rights recognized under this article in accordance  with  the  terms  of
     9  that provision; and
    10    (f)  intestate  succession.  The  right  to publicity of an individual
    11  dying intestate  shall  be  distributed  under  the  laws  of  intestate
    12  succession, and the rights and remedies of this article may be exercised
    13  and  enforced  by  a  person or persons who possess at least a fifty-one
    14  percent interest of the individual's right of  publicity.  Such  persons
    15  shall  make  a proportional accounting to, and shall act at all times in
    16  good faith with respect to, any other person in whom  the  rights  being
    17  enforced have vested.
    18    2. The rights established by the provisions of this article pertaining
    19  to the right of publicity shall also be freely transferable or descendi-
    20  ble  by  any  subsequent  owner  of  the  deceased individual's right to
    21  publicity as recognized by this article. Nothing in  the  provisions  of
    22  this  article pertaining to the right of publicity shall be construed to
    23  render invalid or unenforceable any contract entered into by a  deceased
    24  individual  during  his or her lifetime by which the deceased individual
    25  assigned the rights, in whole or in part, to use his  or  her  right  of
    26  publicity as defined in this article.
    27    3.  If  any  deceased  individual  does not transfer his or her rights
    28  under this section by contract, license,  gift,  trust  or  testamentary
    29  document,  and  there are no surviving persons as described in paragraph
    30  (f) of subdivision one of this section, then the property rights associ-
    31  ated with the deceased individual's right of publicity shall terminate.
    32    4. Any person claiming to be a successor in interest to the  right  of
    33  publicity of a deceased individual under this article or a licensee of a
    34  deceased  individual's right of publicity shall register that claim with
    35  the secretary on a form prescribed by the secretary and upon payment  of
    36  a  fee  of  fifty  dollars.  The form shall include the name and date of
    37  death of the deceased individual, the name and address of the  claimant,
    38  the  basis  of the claim, and a sworn affidavit under penalty of perjury
    39  as to the rights claimed. Claims  registered  under  this  registry  and
    40  information  regarding such successors in interest to the deceased indi-
    41  vidual's right of publicity shall be public records.
    42    5. Upon receipt and after filing of  any  document  pursuant  to  this
    43  section,  the  secretary  shall  post the document along with the entire
    44  registry of persons  claiming  to  be  successors  in  interest  to  the
    45  deceased  individual's right of publicity or a registered licensee under
    46  this section upon an internet website developed  by  the  secretary  for
    47  such  purpose. The secretary may reproduce by digital or other means any
    48  of the filings or documents and destroy the original filing or document.
    49    6. The secretary is authorized to promulgate such regulations as he or
    50  she shall deem necessary to implement  the  provisions  of  subdivisions
    51  four and five of this section.
    52    7.  No  action  shall  be brought under the provisions of this article
    53  pertaining to the right of publicity by reason of any use of a  deceased
    54  individual's  right  of  publicity occurring after the expiration of the
    55  duration of the right of publicity as provided  in  section  fifty-g  of
    56  this article. Furthermore, no action may be brought under the provisions

        A. 8155--A                          4

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

        A. 8155--A                          5

     1    (ii)  a work of political, public interest or newsworthy value includ-
     2  ing a comment, criticism, parody, satire or a transformative creation of
     3  a work of authorship; or
     4    (iii) an advertisement or commercial announcement for any of the works
     5  described in paragraph (a) of this subdivision or this paragraph; or
     6    (c)  use  of the right of publicity of a deceased individual where the
     7  licensee or successor in interest has failed  to  register  and  post  a
     8  claim  of right under section fifty-h of this article until such time as
     9  a claim of right has been registered and posted as required  under  such
    10  section.
    11    (d)  however,  subject  to  the  First  Amendment of the United States
    12  Constitution and section eight of article one  of  the  New  York  state
    13  constitution, a work that is exempt under this subdivision that includes
    14  a  commercial  use and replicates the professional performance or activ-
    15  ities rendered by an individual, shall not be exempt under this subdivi-
    16  sion where the replication is inextricably intertwined with the right of
    17  publicity of such individual.
    18    3. Limited immunity. Owners or employees of any medium used for adver-
    19  tising including, but not limited to, newspapers, magazines,  radio  and
    20  television  networks and stations, cable television systems, billboards,
    21  and transit ads, by whom any use of an individual's right  of  publicity
    22  for  commercial  purposes  in  violation  of  that individual's right of
    23  publicity is published or disseminated, shall not be  liable  under  the
    24  provisions  of  this article pertaining to the right of publicity unless
    25  it is established that the owners or  employees  had  knowledge  of  the
    26  unauthorized  use  as  prohibited  by  the  provisions  of  this article
    27  pertaining to the right of publicity.
    28    4. Action for injunction and  for  damages.  Any  [person]  individual
    29  either living or deceased whose [name, portrait, picture or voice] right
    30  of  publicity  is  used within this state for advertising purposes [or],
    31  for the purposes of trade or for purposes of fund-raising  or  solicita-
    32  tion of donations, without the written consent first obtained as [above]
    33  provided [may] in the provisions of this article pertaining to the right
    34  of  publicity  is entitled to maintain an equitable action for violation
    35  of the individual's right of publicity in  the  supreme  court  of  this
    36  state  against  the  person[,  firm  or corporation] so using his [name,
    37  portrait, picture or voice] or her right of publicity,  to  prevent  and
    38  restrain  the  use thereof; and may also sue and recover damages for any
    39  injuries sustained including an amount equal to  the  greater  of  seven
    40  hundred  fifty dollars or compensatory damages by reason of such use and
    41  if  the  defendant  shall  have  knowingly  used  such  person's  [name,
    42  portrait,  picture  or  voice]  right  of publicity in such manner as is
    43  forbidden or declared to be unlawful by [section fifty]  the  provisions
    44  of this article relating to the right of publicity, the [jury] finder of
    45  fact,  in  its  discretion, may award exemplary damages. [But nothing] A
    46  violation of an individual's right of publicity may occur without regard
    47  to whether the use or activity is for profit or not-for-profit with  the
    48  exception  of  the  use  of an individual's right of publicity for fund-
    49  raising  purposes  by  not-for-profit  radio  and  television   stations
    50  licensed by the Federal Communications Commission of the Untied States.
    51    5.  No  defense.  It  shall  not constitute a defense to an action for
    52  violation of an individual's right  of  publicity  that  such  violation
    53  includes more than one individual.
    54    6.  Use  and transfer.   Nothing contained in this article shall be so
    55  construed as to prevent any [person, firm or corporation] individual  or
    56  person  from  selling  or otherwise transferring any material containing

        A. 8155--A                          6
 
     1  such [name, portrait, picture or voice] right of publicity  as  provided
     2  in  the provisions of this article relating to the right of publicity in
     3  whatever medium to any user of such [name, portrait, picture  or  voice]
     4  right  of publicity, or to any third party for sale or transfer directly
     5  or indirectly to such a user, for use in  a  manner  lawful  under  this
     6  article[; nothing].
     7    7.  Photographers.  Nothing  contained  in  this  article  shall be so
     8  construed as to prevent any person[, firm  or  corporation,]  practicing
     9  the  profession  of photography, from exhibiting [in or about his or its
    10  establishment] specimens of the work of such  [establishment]  photogra-
    11  pher, unless the same is continued by such person[, firm or corporation]
    12  after  written  notice  objecting thereto has been given by the [person]
    13  individual portrayed[; and nothing].
    14    8. Manufacturers, writers, composers and artists. Nothing contained in
    15  this article shall be so construed as to prevent any  person[,  firm  or
    16  corporation]  from using the [name, portrait, picture or voice of] right
    17  of publicity owned by any manufacturer or dealer in connection with  the
    18  goods, wares and merchandise manufactured, produced or dealt in by [him]
    19  the  manufacturer  which  [he]  has  been  sold or disposed of with such
    20  [name, portrait, picture or voice] right of publicity used in connection
    21  therewith; or from using the [name, portrait, picture or voice] right of
    22  publicity of any author, composer or artist in connection  with  his  or
    23  her  literary,  musical or artistic productions which he or she has sold
    24  or disposed of with such [name, portrait, picture  or  voice]  right  of
    25  publicity used in connection therewith.
    26    9.  Copyright  owners  of a sound recording. Nothing contained in this
    27  section shall be construed to prohibit the copyright owner  of  a  sound
    28  recording from disposing of, dealing in, licensing or selling that sound
    29  recording  to any party, if the right to dispose of, deal in, license or
    30  sell such sound recording has been conferred by contract or other  writ-
    31  ten document by such living person or the holder of such right. [Nothing
    32  contained  in  the  foregoing  sentence  shall  be deemed to abrogate or
    33  otherwise limit any rights or remedies otherwise  conferred  by  federal
    34  law or state law.]
    35    10.  Termination  of  post  mortem  right of publicity. Nothing in the
    36  provisions of this article pertaining to the right of publicity shall be
    37  construed as prohibiting the use of the deceased individual's  right  of
    38  publicity  that occurs after the expiration of forty years following his
    39  or her death.   Nor shall anything in the  provisions  of  this  article
    40  pertaining  to the right of publicity be construed as creating liability
    41  or giving rise to any remedy for any actions or  conduct  involving  the
    42  use of a deceased individual's right of publicity that occurred prior to
    43  the  effective date of the chapter of the laws of two thousand seventeen
    44  which amended this section.
    45    11. Statute of Limitations. Actions brought under  the  provisions  of
    46  this  article  pertaining  to  the right of publicity shall be commenced
    47  within one year of the date of discovery of the injury to the  plaintiff
    48  or  from  the  date  through  the  exercise of due diligence such injury
    49  should have been discovered by the plaintiff, whichever is earlier.
    50    § 5. The section heading and subdivision 3 of section 215 of the civil
    51  practice law and rules are amended to read as follows:
    52    Actions to be commenced within one year: against sheriff,  coroner  or
    53  constable; for escape of prisoner; for assault, battery, false imprison-
    54  ment, malicious prosecution, libel or slander; for violation of right of
    55  [privacy]  publicity;  for  penalty  given  to  informer; on arbitration
    56  award.

        A. 8155--A                          7
 
     1    3. an action to recover damages for assault, battery, false  imprison-
     2  ment, malicious prosecution, libel, slander, false words causing special
     3  damages,  or  a  violation  of  the  right  of [privacy] publicity under
     4  [section fifty-one] article five of the civil rights law;
     5    § 6. This act shall take effect on the one hundred eightieth day after
     6  it  shall have become a law, and shall apply to deceased individuals who
     7  died on or after such date.
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