S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         5650
                              2015-2016 Regular Sessions
                                   I N  S E N A T E
                                     May 22, 2015
                                      ___________
       Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
         when printed to be committed to the Committee on Codes
       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    S 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
       S. 5650                             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    S 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    S 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    S 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    S 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    S  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
       S. 5650                             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.
       S. 5650                             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    S  36.  REMEDIES.  IN  THE  EVENT  THE  CONSENT  REQUIRED  IN  SECTION
   12  THIRTY-TWO OF THIS ARTICLE IS NOT OBTAINED, ANY PERSON HAVING THE  RIGHT
   13  TO  GIVE SUCH CONSENT AS PROVIDED IN SECTION THIRTY-TWO OF THIS ARTICLE,
   14  MAY BRING AN ACTION TO  ENJOIN  SUCH  UNAUTHORIZED  USE  FOR  COMMERCIAL
   15  PURPOSES,  AND  TO  RECOVER  DAMAGES FOR ANY LOSS OR INJURY SUSTAINED BY
   16  REASON THEREOF, INCLUDING AN AMOUNT WHICH WOULD HAVE BEEN  A  REASONABLE
   17  ROYALTY, AND PUNITIVE OR EXEMPLARY DAMAGES.
   18    S  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    S  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    S 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    S 4. This act shall take effect one year after it shall have become  a
   54  law.