S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7904

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                              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:

  Section 1. The civil rights law is amended by adding a new article 3-A
to read as follows:
                               ARTICLE 3-A
                           RIGHT OF PUBLICITY
SECTION 30. DEFINITIONS.
        31. PROPERTY RIGHT ESTABLISHED.
        32. PROHIBITED USES.
        33. CONSENT.
        34. EXEMPTIONS FROM USE RESTRICTIONS.
        35. APPLICABILITY.
        36. REMEDIES.
        37. ENFORCEMENT OF RIGHTS.
  S 30. DEFINITIONS. AS USED IN THIS ARTICLE:
  1. "COMMERCIAL PURPOSE" MEANS THE USE OF OR REFERENCE TO ANY ASPECT OF
AN INDIVIDUAL'S PERSONA IN ANY OF THE FOLLOWING MANNERS: (A)  ON  OR  IN
CONNECTION  WITH  THE  OFFERING  FOR SALE OR SALE OF A PLACE, A PRODUCT,
MERCHANDISE, GOOD, SERVICE OR BUSINESS; (B) FOR ADVERTISING OR PROMOTING
THE PURCHASE OR SALE OF A PRODUCT, MERCHANDISE, GOOD, SERVICE  OR  BUSI-
NESS; AND (C) FOR THE PURPOSE OF PROMOTING TRAVEL.
  2. "DECEASED INDIVIDUAL" MEANS ANY NATURAL PERSON WHO DIED A DOMICILI-
ARY  OF THE STATE OF NEW YORK ON OR AFTER, OR WITHIN SEVENTY YEARS PRIOR
TO, THE EFFECTIVE DATE OF THIS ARTICLE.
  3. "PERSON" MEANS A NATURAL PERSON, CORPORATION, PARTNERSHIP,  LIMITED
LIABILITY  CORPORATION,  LIMITED LIABILITY PARTNERSHIP, TRUST, ESTATE OR
OTHER LEGAL ENTITY.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11099-02-5
              

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  4. "PERSONA" MEANS THE  NAME,  PORTRAIT,  PICTURE,  VOICE,  SIGNATURE,
PHOTOGRAPH,  IMAGE, LIKENESS OR DISTINCTIVE APPEARANCE, GESTURE, MANNER-
ISMS OR OTHER INDICIA OF A DECEASED INDIVIDUAL.
  5. "WORK OF FINE ART" MEANS:
  (A)  A  VISUAL  RENDITION  INCLUDING,  BUT NOT LIMITED TO, A PAINTING,
DRAWING, SCULPTURE, MOSAIC, VIDEOTAPE, OR PHOTOGRAPH;
  (B) A WORK OF CALLIGRAPHY;
  (C) A WORK OF GRAPHIC ART INCLUDING, BUT NOT LIMITED TO,  AN  ETCHING,
LITHOGRAPH, SERIGRAPH, OR OFFSET PRINT;
  (D)  A  CRAFT  WORK  IN MATERIALS INCLUDING, BUT NOT LIMITED TO, CLAY,
TEXTILE, FIBER, WOOD, METAL, PLASTIC OR GLASS; OR
  (E) A WORK IN MIXED MEDIA INCLUDING, BUT NOT LIMITED  TO,  A  COLLAGE,
ASSEMBLAGE,  OR  WORK  CONSISTING  OF ANY COMBINATION OF PARAGRAPHS (A),
(B), (C) OR (D) OF THIS SUBDIVISION.
  S 31. PROPERTY  RIGHT  ESTABLISHED.  A  PROPERTY  RIGHT  EXISTS  IN  A
DECEASED  INDIVIDUAL'S  PERSONA FOR SEVENTY YEARS AFTER THE DEATH OF THE
INDIVIDUAL.
  S 32. PROHIBITED USES. NO PERSON SHALL USE FOR COMMERCIAL PURPOSES  IN
THIS  STATE, THE PERSONA OF ANY DECEASED INDIVIDUAL WITHOUT HAVING FIRST
OBTAINED THE WRITTEN CONSENT OF THE  PERSON  OR  PERSONS  IDENTIFIED  IN
SECTION  THIRTY-THREE  OF  THIS  ARTICLE  AND  WHO  OWNS MORE THAN FIFTY
PERCENT OF THE RIGHTS IN THE DECEASED INDIVIDUAL'S PERSONA, OR AS OTHER-
WISE PROVIDED IN THIS ARTICLE.
  S 33. CONSENT. THE WRITTEN CONSENT REQUIRED BY THIS ARTICLE  SHALL  BE
EXERCISABLE  BY  THE  PERSON  OR  PERSONS WHO COLLECTIVELY OWN MORE THAN
FIFTY PERCENT OF THE RIGHTS IN  THE  DECEASED  INDIVIDUAL'S  PERSONA  IN
ACCORDANCE WITH SUBDIVISION ONE OF SECTION THIRTY-FIVE AND SECTION THIR-
TY-SIX  OF  THIS  ARTICLE. REASONABLE RELIANCE UPON SUCH WRITTEN CONSENT
SHALL BE A DEFENSE IN ANY ACTION BROUGHT UNDER THIS ARTICLE.
  S 34. EXEMPTIONS FROM USE RESTRICTIONS. THE WRITTEN CONSENT  SPECIFIED
IN  SECTION  THIRTY-TWO  OF  THIS  ARTICLE  SHALL  NOT  BE  REQUIRED  IN
CONNECTION WITH THE USE OF A DECEASED  INDIVIDUAL'S  PERSONA  FOR  OTHER
THAN  COMMERCIAL  PURPOSES OR FOR A USE THAT IS PERMITTED UNDER THE LAWS
OF THE CONSTITUTION OF THE UNITED STATES OR THE STATE OF NEW  YORK.  FOR
PURPOSES  OF  THIS  SECTION,  THE  FOLLOWING TYPES OF USES REGARDLESS OF
LENGTH OR FORMAT,  APPEARING  IN  ANY  MEDIUM  NOW  KNOWN  OR  HEREAFTER
DEVISED,  SHALL  NOT  BE CONSIDERED TO HAVE USED A DECEASED INDIVIDUAL'S
PERSONA FOR COMMERCIAL PURPOSES SO LONG AS SUCH USES DO  NOT  CONSTITUTE
AN  ADVERTISEMENT,  ENDORSEMENT OR SOLICITATION FOR THE SALE OR PURCHASE
OF A PRODUCT, ARTICLE OF MERCHANDISE, GOOD OR SERVICE,  OTHER  THAN  FOR
THE  WORK ITSELF AND THE WORK DOES NOT CONTAIN AN IMAGE OR LIKENESS THAT
IS  PRIMARILY  COMMERCIAL,  NOT  TRANSFORMATIVE  AND  IS  NOT  OTHERWISE
PROTECTED  BY  THE  FIRST AMENDMENT TO THE UNITED STATES CONSTITUTION OR
NEW YORK STATE CONSTITUTION:
  1. A PLAY, BOOK, GRAPHIC NOVEL OR OTHER LITERARY OR THEATRICAL WORK;
  2. A WORK OF POLITICAL OR NEWSWORTHY VALUE CONCERNING PUBLIC INTEREST,
INCLUDING A TELEVISION BROADCAST OR AN ARTICLE, EDITORIAL OR  COMMENTARY
IN A MAGAZINE, NEWSPAPER, NEWSLETTER OR OTHER PERIODICAL;
  3.  AN  ORIGINAL MUSICAL COMPOSITION, MUSICAL SOUND RECORDING OR OTHER
SIMILAR MUSICAL WORK;
  4. A DOCUMENTARY, FILM, MOTION PICTURE, TELEVISION  PROGRAM  OR  OTHER
SIMILAR AUDIOVISUAL WORK; OR
  5. AN ORIGINAL WORK OF FINE ART OR A WORK OF FINE ART REPRODUCTION.
  S  35.  APPLICABILITY. 1. THE RIGHTS RECOGNIZED UNDER THIS ARTICLE ARE
EXPRESSLY MADE RETROACTIVE AND SHALL BE DEEMED TO HAVE  EXISTED  AT  THE
TIME  OF  DEATH OF ANY INDIVIDUAL WHO DIED WITHIN SEVENTY YEARS PRIOR TO

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THE EFFECTIVE DATE OF THIS ARTICLE AND, EXCEPT WHERE  SUCH  RIGHTS  WERE
PASSED,  TRANSFERRED  OR  ASSIGNED  PRIOR  TO SUCH DECEASED INDIVIDUAL'S
DEATH BY MEANS OF ANY WRITTEN CONTRACT OR  TRUST  INSTRUMENT,  SHALL  BE
DEEMED  TO HAVE VESTED IN THE PERSON OR PERSONS ENTITLED TO THESE RIGHTS
UNDER THE TESTAMENTARY INSTRUMENT OF THE DECEASED  INDIVIDUAL  EFFECTIVE
AS  OF  THE  DATE OF HIS OR HER DEATH. IN THE ABSENCE OF A TRANSFER IN A
TESTAMENTARY INSTRUMENT OF THE PERSONA OF A DECEASED  INDIVIDUAL  RECOG-
NIZED  UNDER  THIS  SECTION,  A PROVISION IN THE TESTAMENTARY INSTRUMENT
THAT PROVIDES FOR THE DISPOSITION OF THE RESIDUE OF THE  DECEASED  INDI-
VIDUAL'S ASSETS SHALL BE EFFECTIVE TO TRANSFER THE DECEASED INDIVIDUAL'S
PERSONA  IN  ACCORDANCE  WITH  THE  TERMS  OF THAT PROVISION. IF NO SUCH
CONTRACT, TRUST OR TESTAMENTARY INSTRUMENT EXISTS OR EXISTED AT THE TIME
OF THE DEATH OF THE DECEASED  INDIVIDUAL,  THEN  SUCH  RIGHTS  SHALL  BE
DEEMED TO HAVE PASSED IN ACCORDANCE WITH THE LAWS OF INTESTACY IN EFFECT
AT  THE TIME OF THE DECEASED INDIVIDUAL'S DEATH, PROVIDED, HOWEVER, THAT
IF THERE ARE OR WERE AT THE TIME OF THE DECEASED INDIVIDUAL'S  DEATH  NO
SURVIVING  NATURAL  PERSONS  TO  WHOM  SUCH  RIGHTS WOULD HAVE PASSED BY
INTESTATE SUCCESSION, THEN SUCH RIGHTS SHALL  TERMINATE  OR  SHALL  HAVE
BEEN DEEMED TO HAVE TERMINATED.
  2. A DECEASED INDIVIDUAL'S PERSONA IS PERSONAL PROPERTY, FREELY TRANS-
FERABLE  OR DESCENDABLE, IN WHOLE OR IN PART, BY CONTRACT OR BY MEANS OF
ANY TRUST OR TESTAMENTARY INSTRUMENT, WHETHER SUCH  CONTRACT,  TRUST  OR
TESTAMENTARY INSTRUMENT WAS ENTERED INTO OR EXECUTED BEFORE OR AFTER THE
EFFECTIVE DATE OF THIS ARTICLE.
  3.  NOTHING  IN THIS SECTION SHALL BE CONSTRUED AS PROHIBITING THE USE
OF THE DECEASED INDIVIDUAL'S PERSONA THAT OCCURS AFTER THE EXPIRATION OF
SEVENTY YEARS FOLLOWING THE DEATH OF THAT DECEASED INDIVIDUAL. NOR SHALL
ANYTHING IN THIS SECTION BE CONSTRUED AS CREATING  LIABILITY  OR  GIVING
RISE  TO  ANY  REMEDY  FOR ANY ACTIONS OR CONDUCT INVOLVING THE USE OF A
DECEASED INDIVIDUAL'S PERSONA THAT OCCURRED PRIOR TO THE EFFECTIVE  DATE
OF THIS ARTICLE.
  4.  (A) THIS ARTICLE SHALL NOT PROHIBIT THE USE OF A DECEASED INDIVID-
UAL'S PERSONA TO ACCURATELY IDENTIFY THAT  DECEASED  INDIVIDUAL  AS  THE
AUTHOR  OF  OR  CONTRIBUTOR  TO A WORK OR AS THE PERFORMER OF A RECORDED
PERFORMANCE, UNDER CIRCUMSTANCES IN WHICH THE WORK OR RECORDED  PERFORM-
ANCE IS OTHERWISE LAWFULLY USED, REPRODUCED, EXHIBITED OR BROADCAST.
  (B)  THIS  ARTICLE SHALL NOT PROHIBIT THE USE OF THE DECEASED INDIVID-
UALS' PERSONA TO ACCURATELY IDENTIFY THEIR PLACE OF BURIAL.
  5. NO PERSON POSSESSING RIGHTS OR  TITLE,  HOWEVER  HELD,  IN  A  WORK
ENCOMPASSING  ANY  ASPECT  OR ASPECTS OF A DECEASED INDIVIDUAL'S PERSONA
SHALL BE LIABLE UNDER THIS ARTICLE FOR LICENSING OR OTHERWISE  AUTHORIZ-
ING  THE  USE OF SUCH WORK BY A THIRD PARTY, OR FOR DISPLAYING IMAGES OF
SUCH WORK AS AVAILABLE FOR LICENSE OR SIMILAR USE BY A THIRD  PARTY,  SO
LONG  AS  SUCH  PERSON DOES NOT: (A) KNOW OR INTEND THAT THE THIRD PARTY
PLANS TO USE SUCH WORK TO ENGAGE IN AN UNAUTHORIZED USE OF THE  DECEASED
INDIVIDUAL'S  PERSONA  AS  PROHIBITED  BY  THIS ARTICLE; OR (B) DOES NOT
WARRANT OR REPRESENT THAT THE  THIRD  PARTY  MAY  USE  THE  LICENSED  OR
AUTHORIZED  ASPECT  OF  THE DECEASED INDIVIDUAL'S PERSONA FOR COMMERCIAL
PURPOSES WITHOUT FIRST OBTAINING THE WRITTEN CONSENT REQUIRED BY SECTION
THIRTY-TWO OF THIS ARTICLE. IN THE EVENT THAT SUCH THIRD PARTY  LICENSEE
INTENDED  TO  USE  ANY  ASPECT OF A DECEASED INDIVIDUAL'S PERSONA ENCOM-
PASSED IN SUCH WORK FOR COMMERCIAL PURPOSES WITHOUT THE PRIOR  KNOWLEDGE
AND  INTENT OF THE LICENSING OR AUTHORIZING PERSON, IT SHALL BE THE SOLE
RESPONSIBILITY OF THE THIRD PARTY LICENSEE TO OBTAIN THE WRITTEN CONSENT
REQUIRED BY SECTION THIRTY-TWO OF THIS ARTICLE.

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  6. UNLESS OTHERWISE AGREED TO IN WRITING, ONLY THE PERSONS WHO ACTUAL-
LY AUTHORIZE, PROVIDE FOR SERVICES, MANUFACTURE OR OTHERWISE  CREATE  AN
ADVERTISEMENT,  PRODUCT, ARTICLE OF MERCHANDISE, GOOD OR SERVICE EMBODY-
ING A DECEASED INDIVIDUAL'S PERSONA SHALL BE RESPONSIBLE  FOR  OBTAINING
THE  WRITTEN  CONSENT  REQUIRED BY SECTION THIRTY-TWO OF THIS ARTICLE. A
DISTRIBUTOR OR TRANSMITTER OF SUCH AN ADVERTISEMENT, PRODUCT, ARTICLE OF
MERCHANDISE, GOOD OR SERVICE SHALL NOT BE LIABLE FOR  ANY  VIOLATION  OF
THIS  ARTICLE,  UNLESS  SUCH  DISTRIBUTOR  OR  TRANSMITTER INTENTIONALLY
ENGAGES IN AN UNAUTHORIZED USE OF A  DECEASED  INDIVIDUAL'S  PERSONA  AS
PROHIBITED BY THIS ARTICLE, KNOWING THAT SUCH USE REQUIRES CONSENT.
  S  36.  REMEDIES.  IN  THE  EVENT  THE  CONSENT  REQUIRED  IN  SECTION
THIRTY-TWO OF THIS ARTICLE IS NOT OBTAINED, ANY PERSON HAVING THE  RIGHT
TO  GIVE SUCH CONSENT AS PROVIDED IN SECTION THIRTY-TWO OF THIS ARTICLE,
MAY BRING AN ACTION TO  ENJOIN  SUCH  UNAUTHORIZED  USE  FOR  COMMERCIAL
PURPOSES,  AND  TO  RECOVER  DAMAGES FOR ANY LOSS OR INJURY SUSTAINED BY
REASON THEREOF, INCLUDING AN AMOUNT WHICH WOULD HAVE BEEN  A  REASONABLE
ROYALTY, AND PUNITIVE OR EXEMPLARY DAMAGES.
  S  37.  ENFORCEMENT OF RIGHTS. 1. ANY ACTION TO ENFORCE THE PROVISIONS
OF THIS ARTICLE SHALL BE SUBJECT TO THE ONE-YEAR LIMITATION  PERIOD  SET
FORTH  IN  SUBDIVISION THREE OF SECTION TWO HUNDRED FIFTEEN OF THE CIVIL
PRACTICE LAW AND RULES AND MAY ONLY BE COMMENCED IN CONNECTION  WITH  AN
UNAUTHORIZED  USE  FOR  COMMERCIAL  PURPOSES THAT OCCURS ON OR AFTER THE
EFFECTIVE DATE OF THIS ARTICLE.
  2. NOTWITHSTANDING ANY PROVISION OF THIS ARTICLE TO THE  CONTRARY,  IF
AN ACTION WAS TAKEN PRIOR TO THE EFFECTIVE DATE OF THIS ARTICLE TO EXER-
CISE  RIGHTS  RECOGNIZED UNDER THIS SECTION RELATING TO A DECEASED INDI-
VIDUAL WHO DIED WITHIN SEVENTY YEARS PRIOR TO THE EFFECTIVE DATE OF THIS
ARTICLE BY A PERSON ENTITLED TO INHERIT THE DECEASED INDIVIDUAL'S  PROP-
ERTY  UNDER  THE LAWS OF INTESTACY IN EFFECT AT THE TIME OF THE DECEASED
INDIVIDUAL'S DEATH, OTHER THAN A PERSON  WHO  WAS  DISINHERITED  BY  THE
DECEASED  INDIVIDUAL  IN  A TESTAMENTARY INSTRUMENT, AND THE EXERCISE OF
THOSE RIGHTS WAS NOT CHALLENGED SUCCESSFULLY IN  A  COURT  ACTION  BY  A
PERSON  DESCRIBED IN SECTION THIRTY-THREE OF THIS ARTICLE, THAT EXERCISE
SHALL NOT BE AFFECTED BY SECTION THIRTY-THREE OF THIS ARTICLE. IN SUCH A
CASE, THE RIGHTS THAT WOULD  OTHERWISE  VEST  IN  ONE  OR  MORE  PERSONS
DESCRIBED  IN  SECTION THIRTY-THREE OF THIS ARTICLE SHALL VEST SOLELY IN
THE PERSON OR PERSONS DESCRIBED IN THE LAWS OF INTESTACY, OTHER  THAN  A
PERSON DISINHERITED BY THE DECEASED INDIVIDUAL IN A TESTAMENTARY INSTRU-
MENT, FOR ALL FUTURE PURPOSE.
  S  2. Subdivision 3 of section 215 of the civil practice law and rules
is amended to read as follows:
  3. an action to recover damages for assault, battery, false  imprison-
ment, malicious prosecution, libel, slander, false words causing special
damages,  [or]  a violation of the right of privacy under section fifty-
one of the civil rights law OR A VIOLATION OF  THE  RIGHT  OF  PUBLICITY
UNDER ARTICLE 3-A OF THE CIVIL RIGHTS LAW;
  S 3. Severability. If any clause, sentence, paragraph, section or part
of  this act shall be adjudged by any court of competent jurisdiction to
be invalid, such judgment shall not affect,  impair  or  invalidate  the
remainder thereof, but shall be confined in its operation to the clause,
sentence,  paragraph,  section  or part thereof directly involved in the
controversy in which such judgment shall have been rendered.
  S 4. This act shall take effect one year after it shall have become  a
law.