NY State Senate Bill 2017-S5857B

Senate Bill S5857B

2017-2018 Legislative Session

Establishes the right of privacy and the right of publicity for both living and deceased individuals

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Actions

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jun 08, 2018	print number 5857b
Jun 08, 2018	amend (t) and recommit to judiciary
Jan 03, 2018	referred to judiciary
Jun 21, 2017	committed to rules
Jun 15, 2017	amended on third reading (t) 5857a
Jun 05, 2017	advanced to third reading
May 24, 2017	2nd report cal.
May 23, 2017	1st report cal.1131
May 03, 2017	referred to judiciary

Votes

- May 23, 2017 - Judiciary Committee Vote
  S5857B
  
  17
  
  Aye
  
  2
  
  Nay
  
  4
  
  Aye with Reservations
  
  0
  
  Absent
  
  0
  
  Excused
  
  0
  
  Abstained
  - - Judiciary Committee Vote: May 23, 2017
      
      aye (17)
      
      Amedore
      
      Avella
      
      Bailey
      
      Bonacic
      
      Boyle
      
      Croci
      
      Diaz
      
      Dilan
      
      Hamilton
      
      Jacobs
      
      Kaminsky
      
      Lanza
      
      Montgomery
      
      O'Mara
      
      Phillips
      
      Savino
      
      Stavisky
      
      nay (2)
      
      Hannon
      
      Ranzenhofer
      
      aye wr (4)
      
      Breslin
      
      Hoylman-Sigal
      
      LaValle
      
      Serino

Bill Amendments

Original

B (Active)

co-Sponsors

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2017-S5857 - Details

See Assembly Version of this Bill:: A8155
Current Committee:: Senate Judiciary
Law Section:: Civil Rights Law
Laws Affected:: Ren §50 to be §50-f, add §§50, 50-g, 50-h & 50-i, amd §§50-f & 51, Civ Rts L; amd §215, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S5959, A5605

2017-S5857 - Summary

Establishes the right of privacy and the right of publicity for both living and deceased individuals; provides that an individual's persona 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 that the use of a digital replica for purposes of trade within an expressive work shall be a violation.

2017-S5857 - Sponsor Memo

                                 BILL NUMBER:  S5857

 TITLE OF BILL :  An act to amend the civil practice law and rules and
the civil rights law, in relation to the right to privacy and persona
rights

 PURPOSE OR GENERAL IDEA OF BILL :

To add persona rights to Section 50 of the Civil Rights Law, Right of
Privacy.

 SUMMARY OF PROVISIONS :

Section 50(1) of the Civil Rights Law would be amended to define
"person" and "persona."

Section 50(2) would provide that a person who uses the persona of a
living or deceased person without written consent for advertising
and/or trade purposes would be guilty of a misdemeanor.

Section 50(3) would provide that, regarding a deceased person's
persona, the required written consent would be exercisable by the
person or persons who collectively own more than 50% of the rights of
the persona.

Section 50(4) would provide that this property right would exist in a

deceased individual who died on or after or within seventy years
before the effective date of this subdivision. It would further
provide that these property rights would be freely transferrable or
descendible, and would exist for seventy years after the death of the
individual.

Section 50(5) would provide that, in the absence of a transfer in a
testamentary instrument, a provision in a testamentary instrument that
provides for the disposition of the rest of a deceased person's assets
would be effective to transfer the individual's persona.

Section 50(6) would provide that persona rights recognized by a person
identified as entitled to inherit a deceased individual's property
under intestacy would not be affected.

Section 51(1) would provide an equitable cause of action for a
violation of this; a plaintiff could seek to prevent and restrain the
use of a persona, and/or damages.

Section 51(2) would require that such an action be brought within
three years of the date of discovery, or from the date through the
exercise of reasonable diligence such should have been discovered.

 JUSTIFICATION :

This bill would establish a property right in an individual's persona,
and would further establish that use of an individual's persona
without written consent for advertising and/or trade purposes would be
a misdemeanor. Such unauthorized use would also create a cause of
action; a plaintiff could seek to prevent and restrain the use of a
persona, and/or damages.

 PRIOR LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

None.

 EFFECTIVE DATE :
Immediately.

2017-S5857 - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5857
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2017
                                ___________
 
 Introduced  by  Sens.  SAVINO, AVELLA -- read twice and ordered printed,
   and when printed to be committed to the Committee on Judiciary
 
 AN ACT to amend the civil practice law and rules and  the  civil  rights
   law, in relation to the right to privacy and persona rights
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. 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];
   § 2. The article heading of article 5  of  the  civil  rights  law  is
 amended to read as follows:
                    Right of Privacy AND PERSONA RIGHTS
   § 3. Section 50 of the civil rights law is amended to read as follows:
   §  50. Right of privacy AND PERSONA RIGHTS.  1. (A) THE TERM "PERSON",
 AS USED IN THIS ARTICLE, SHALL MEAN A PERSON, CORPORATION,  PARTNERSHIP,
 LIMITED LIABILITY COMPANY, LIMITED LIABILITY PARTNERSHIP, TRUST, ESTATE,
 OR OTHER LEGAL ENTITY.
   (B) THE TERM "PERSONA", AS USED IN THIS ARTICLE, SHALL MEAN A PERSON'S
 NAME,  PORTRAIT, PICTURE, IMAGE, VOICE, SIGNATURE, PHOTOGRAPH, LIKENESS,
 DISTINCTIVE APPEARANCE, GESTURES OR MANNERISMS.
   2. A person[, firm or corporation] that uses for advertising purposes,
 or for the purposes of trade, the [name, portrait or picture] PERSONA of
 any [living] person, LIVING OR DECEASED, without having  first  obtained
 the  written  consent of such person, or if a minor of his or her parent
 or guardian, OR IF SUCH PERSON IS DECEASED  HIS  OR  HER  SUCCESSORS  IN
 INTEREST, is guilty of a misdemeanor.
   3.  IN REGARDS TO THE DECEASED INDIVIDUAL, WRITTEN CONSENT REQUIRED BY
 THIS ARTICLE SHALL BE EXERCISABLE BY THE PERSON OR PERSONS  WHO  COLLEC-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.

                                                            LBD11325-01-7

 S. 5857                             2
 
 TIVELY  OWN MORE THAN FIFTY PERCENT OF THE RIGHTS OF THE DECEASED PERSO-
 NA.  REASONABLE RELIANCE UPON SUCH WRITTEN CONSENT SHALL BE A DEFENSE TO
 ANY ACTION BROUGHT UNDER THIS ARTICLE.
   4. THE PROPERTY RIGHT ESTABLISHED BY THIS ARTICLE EXISTS IN A DECEASED
 INDIVIDUAL  WHO  DIED ON OR AFTER, OR WITHIN SEVENTY YEARS PRIOR TO, THE
 EFFECTIVE DATE OF THIS SUBDIVISION. THE PERSONA RIGHTS RECOGNIZED  UNDER
 THIS SECTION ARE PROPERTY RIGHTS, FREELY TRANSFERABLE OR DESCENDIBLE, IN
 WHOLE  OR  IN  PART,  BY  CONTRACT OR BY MEANS OF ANY TRUST OR ANY OTHER
 TESTAMENTARY INSTRUMENT, AND SHALL EXIST FOR  SEVENTY  YEARS  AFTER  THE
 DEATH OF THE INDIVIDUAL.
   5.  IN  THE  ABSENCE OF A TRANSFER IN A TESTAMENTARY INSTRUMENT OF THE
 PERSONA OF A  DECEASED  INDIVIDUAL  RECOGNIZED  UNDER  THIS  SECTION,  A
 PROVISION  IN THE TESTAMENTARY INSTRUMENT THAT PROVIDES FOR THE DISPOSI-
 TION OF THE RESIDUE OF THE DECEASED INDIVIDUAL'S ASSETS SHALL BE  EFFEC-
 TIVE  TO  TRANSFER  THE DECEASED INDIVIDUAL'S PERSONA IN ACCORDANCE WITH
 THE TERMS OF THAT PROVISION.
   6. PERSONA  RIGHTS  RECOGNIZED,  UNDER  THIS  SECTION  RELATING  TO  A
 DECEASED INDIVIDUAL WHO DIED WITHIN SEVENTY YEARS PRIOR TO THE EFFECTIVE
 DATE  OF THIS ARTICLE, BY A PERSON IDENTIFIED AS ENTITLED TO INHERIT THE
 DECEASED INDIVIDUAL'S PROPERTY UNDER THE LAWS OF INTESTACY APPLICABLE TO
 THE ESTATE OF THE PERSON IN EFFECT AT THE TIME OF THE DECEASED  INDIVID-
 UAL'S  DEATH,  OTHER  THAN A PERSON WHO WAS DISINHERITED BY THE DECEASED
 INDIVIDUAL IN A TESTAMENTARY INSTRUMENT, SHALL NOT BE AFFECTED, EVEN  IF
 THE  LAWS  OF  INTESTACY  DO  NOT  OTHERWISE  APPLY TO THE ESTATE OF THE
 DECEASED INDIVIDUAL BECAUSE OF A TESTAMENTARY INSTRUMENT.
   § 4. Section 51 of the civil rights law, as amended by chapter 674  of
 the laws of 1995, is amended to read as follows:
   §  51.  Action  for  injunction  and  for damages.   1. Any person, AS
 DEFINED IN SECTION FIFTY OF THIS ARTICLE, whose [name, portrait, picture
 or voice] PERSONA, AS DEFINED IN SECTION FIFTY OF THIS ARTICLE, is  used
 within  this state for advertising purposes or for the purposes of trade
 without the written consent first obtained as [above] provided [may]  IN
 THIS  ARTICLE IS ENTITLED TO maintain an equitable action in the supreme
 court of this state against the person[, firm or corporation]  so  using
 his  [name,  portrait,  picture or voice,] OR HER PERSONA to prevent and
 restrain the use thereof; and may also sue and recover damages  for  any
 injuries  sustained,  INCLUDING  AN AMOUNT EQUAL TO THE GREATER OF SEVEN
 HUNDRED FIFTY DOLLARS OR WHAT WOULD HAVE  BEEN  REASONABLE  COMPENSATION
 FOR  THE  USE OF THE PERSONA, by reason of such use and if the defendant
 shall have knowingly used such  person's  [name,  portrait,  picture  or
 voice] PERSONA in such manner as is forbidden or declared to be unlawful
 by section fifty of this article, the jury, in its discretion, may award
 exemplary  damages.  [But  nothing]  THE  PREVAILING PARTY IN ANY ACTION
 UNDER THIS SECTION SHALL ALSO BE ENTITLED TO ATTORNEY'S FEES AND  COSTS.
 NOTHING  contained  in  this article shall be so construed as to prevent
 any person[, firm or corporation] from selling or otherwise transferring
 any material containing such [name, portrait, picture or voice]  PERSONA
 in  whatever  medium  to  any  user  of such [name, portrait, picture or
 voice] PERSONA, or to any third party for sale or transfer  directly  or
 indirectly  to  such a user, for use in a manner lawful under this arti-
 cle; nothing contained in this article  shall  be  so  construed  as  to
 prevent  any person[, firm or corporation], practicing the profession of
 photography, from exhibiting in or about his, HER or  its  establishment
 specimens  of the work of such establishment, unless the same is contin-
 ued by such person[, firm or corporation] after written notice objecting
 thereto has been given by the person portrayed  OR  THEIR  SUCCESSOR  IN

 S. 5857                             3
 
 INTEREST; and nothing contained in this article shall be so construed as
 to  prevent  any  [person,  firm  or  corporation] from using the [name,
 portrait, picture or voice] PERSONA of any  manufacturer  or  dealer  in
 connection  with the goods, wares and merchandise manufactured, produced
 or dealt in by him OR HER which he OR SHE has sold or disposed  of  with
 such [name, portrait, picture or voice] PERSONA used in connection ther-
 ewith;  or  from using the [name, portrait, picture or voice] PERSONA of
 any author, composer or artist in connection with his OR  HER  literary,
 musical  or artistic productions which he OR SHE has sold or disposed of
 with such [name, portrait, picture or voice] PERSONA used in  connection
 therewith.    Nothing  contained  in  this section shall be construed to
 prohibit the copyright owner of a sound  recording  from  disposing  of,
 dealing  in,  licensing or selling that sound recording to any party, if
 the right to dispose of, deal in, license or sell such  sound  recording
 has  been conferred by contract or other written document by such living
 person or the holder of such right. Nothing contained in  the  foregoing
 sentence  shall  be  deemed to abrogate or otherwise limit any rights or
 remedies otherwise conferred by federal law or state law.
   2. ACTIONS BROUGHT UNDER THIS ARTICLE SHALL BE COMMENCED WITHIN  THREE
 YEARS  OF  THE  DATE OF DISCOVERY OF THE INJURY TO THE PLAINTIFF OR FROM
 THE DATE THROUGH THE EXERCISE OF REASONABLE DILIGENCE SUCH INJURY SHOULD
 HAVE BEEN DISCOVERED BY THE PLAINTIFF, WHICHEVER IS EARLIER.
   § 5. This act shall take effect immediately.

co-Sponsors

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2017-S5857A - Details

See Assembly Version of this Bill:: A8155
Current Committee:: Senate Judiciary
Law Section:: Civil Rights Law
Laws Affected:: Ren §50 to be §50-f, add §§50, 50-g, 50-h & 50-i, amd §§50-f & 51, Civ Rts L; amd §215, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S5959, A5605

2017-S5857A - Summary

2017-S5857A - Sponsor Memo

                                 BILL NUMBER:  S5857A

 TITLE OF BILL :  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

 PURPOSE OF BILL :

To create a right of publicity for deceased individuals and a registry
to publicly post such interests upon thereby giving notice to people
who may seek to use an individual's right of publicity in New York
State for advertising purposes, or for the purposes of trade or for
purposes of fund-raising or solicitation of donations.

 SUMMARY OF PROVISIONS :

§ .50. Definitions. For the purposes of sections fifty-f, fifty-g,
fifty-h, fifty-i and fifty one of this article, the following terms
are defined:

1. "Characteristic"

2. "Deceased individual"

3. "Secretary"

4. "Fund-raising"

5. "Individual"

6. "Likeness"

7. "Name"

8. "Person"

9. "Photograph"

10. "Registration to establish a claim of right"

11. "Right of publicity"

12. "Signature"

§ 50-f. Right of publicity for living and deceased individuals.
Creates a right of publicity for all individuals, whether living or
deceased, wherever they might be domiciled, for actions that occur
within New York State. This legislation establishes that a living or
deceased individual's name, voice, signature and likeness,
individually and collectively known as his or her right of publicity,
is personal property, freely transferable or descendible, 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. An
individual's right of publicity cannot be used without obtaining the
written consent of the individual, his or her successors or assigns,
or in the case of a minor, of his or her parent or guardian.

§ 50-g. Duration of an individual's right of publicity. Establishes
that every individual's right of publicity continues to exist for
forty years after their death, and does not expire upon the death of
the individual, regardless of whether the law of the domicile,
residence, or citizenship of the individual at the time of death or
otherwise recognizes a similar or identical property right.

§ 50-h. Methods of transfer and conveyance. Establishes the ways that
an individual's right of publicity may be transferred, including by
contract, license, gift, trust, will, testamentary instrument or
intestacy. After an individual dies, the person who is his or her
successor in interest with an ownership of fifty one percent or more
of the decedent's right of publicity may register such interest with
the New York State secretary of state for a fee of $50.00. Unless the
right of publicity is registered and publicly posted by the secretary
of state on the public website maintained for that purpose, there is
no protection against the use of a deceased individual's right of
publicity. After forty years have passed, the deceased individual's
right of publicity is no longer protected against use in commerce and
trade. After forty seven years have passed the secretary of state may
destroy all information related to the lapsed right of publicity.

§ 50-i. No abrogation of rights and remedies. States that nothing
contained in the provisions of this article related to the right of
publicity shall be deemed to abrogate or otherwise limit any rights or
remedies otherwise conferred by federal or state law.

§ 51. Action for injunction and for damages. Subparagraph one
determines that this legislation applies to any act that occurs in New
York State regardless of the deceased individual's domicile,
residence, or citizenship. Subparagraph two discusses when consent for
use of another individual's right of publicity as provided in the
provisions of this Article pertaining to the right of publicity shall
not be required with a limited exception. The limited exception is in
response to the development and use of technology that allows a
variety of media forms to reproduce the right of publicity of
individuals, both living and dead, in a variety of contexts such as
movies, videogames and books on CD. Therefore, the statute provides
protections to the use of the life time and post mortem use of an
individual's right of publicity in the light of such technological
developments. Subparagraph three discusses limited immunities for
certain people unless it is established that the owners or employees
had knowledge of the unauthorized use. Subparagraph four states that
if an individual's right of publicity is used within this state for
advertising purposes, or for the purposes of trade or for purposes of
fund-raising or solicitation of donations, without the written consent
the individual is entitled to maintain an equitable action for
violation of the individual's right of publicity. In addition, to
prevent and restrain the use thereof; an individual may also sue and
recover damages for any injuries sustained, including an amount equal
to the greater of seven hundred fifty dollars ($750) or compensatory
damages by reason of such use and if the defendant shall have
knowingly used such person's right of publicity the finder of fact, in
its discretion, may award exemplary damages. Furthermore, a violation
of an individual's right of publicity may occur without regard to
whether the use or activity is for profit or not for profit.

 JUSTIFICATION :

The term "Right of Publicity" originated in the United States Court of
Appeals for the Second Circuit in 1953 in Haelan Laboratories v.
Topps Chewing Gum to describe the right of individuals to control the
use of their name and likenesses for commercial and other valuable
purposes. Since then, more than half of the states have granted rights
of publicity to individuals through either the common law or by
statute.

The Right of Publicity refers to every individual's inherent right to
control the commercial use of his or her personal characteristics,
which can include name, voice, signature, photograph, image, likeness,
distinctive appearance, gestures, or mannerisms. The most critical
function of the Right of Publicity is control. The Right of Publicity,
even though it is a property right, is not merely a property asset,
like a painting or real estate, for estate tax purposes. The Right of
Publicity ensures that if a person, or that person's successor in
interest, does not seek to commercialize the right, they are not
compelled to do so.

This bill provides for a post mortem right of publicity for forty
years after the death of an individual, allowing successors in
interest to provide notice of such interest through a public
registration and posting maintained by the New York Secretary of
State. Along with providing for a post mortem right of publicity the
bill also has exclusions consistent with constitutionally protected
freedom of speech.

Finally, the Right of Publicity created through this legislation
applies to acts that occur within New York State regardless of the
deceased individual's domicile, residence, or citizenship. This way we
are able to prevent anomalous results in the application of the law to
individuals who do not have a Right of Publicity in their domicile or
country.

In conclusion, this bill is balanced in protecting essential first
amendment rights consistent with current law while still providing
protections for an individual's right of publicity during life and for
forty years after death.

 LEGISLATIVE HISTORY :

New bill.

 FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS :

To be determined.

 EFFECTIVE DATE :
This act shall take effect on the one hundred eightieth day after it
shall have become a law, and shall apply to deceased individuals who
died on or after such date.

2017-S5857A - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5857--A
     Cal. No. 1131
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2017
                                ___________
 
 Introduced  by Sens. SAVINO, AKSHAR, ALCANTARA, AVELLA, CROCI, GALLIVAN,
   HAMILTON -- read twice and ordered printed, and  when  printed  to  be
   committed  to  the  Committee  on Judiciary -- 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  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:
 
   Section  1.  Section  50 of the civil rights law is renumbered section
 50-f and a new section 50 is added to read as follows:
   § 50. DEFINITIONS.   FOR THE PURPOSES OF  SECTIONS  FIFTY-F,  FIFTY-G,
 FIFTY-H,  FIFTY-I  AND  FIFTY-ONE  OF  THIS ARTICLE, THE FOLLOWING TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1. "CHARACTERISTIC" MEANS A DISTINCTIVE APPEARANCE, GESTURE OR MANNER-
 ISM RECOGNIZED AS AN IDENTIFYING ATTRIBUTE OF AN INDIVIDUAL.
   2. "DECEASED INDIVIDUAL" MEANS ANY INDIVIDUAL, INCLUDING  HIS  OR  HER
 NAME, VOICE, SIGNATURE OR LIKENESS, REGARDLESS OF THE INDIVIDUAL'S PLACE
 OF DOMICILE, RESIDENCE OR CITIZENSHIP AT THE TIME OF DEATH OR OTHERWISE,
 WHO HAS DIED.
   3. "SECRETARY" MEANS THE SECRETARY OF STATE.
   4.  "FUND-RAISING" MEANS AN ORGANIZED ACTIVITY TO SOLICIT DONATIONS OF
 MONEY OR OTHER GOODS OR SERVICES FROM PERSONS OR ENTITIES BY  AN  ORGAN-
 IZATION, COMPANY OR PUBLIC ENTITY.
   5. "INDIVIDUAL" MEANS A NATURAL PERSON, LIVING OR DEAD.
   6.  "LIKENESS"  MEANS AN IMAGE, DIGITAL REPLICA, PHOTOGRAPH, PAINTING,
 SKETCHING, MODEL, DIAGRAM, OR OTHER RECOGNIZABLE  REPRESENTATION  OF  AN
 INDIVIDUAL'S  FACE  OR  BODY,  AND INCLUDES A CHARACTERISTIC.  A DIGITAL
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD11325-02-7

 S. 5857--A                          2
 
 REPLICA IS A COMPUTER-GENERATED OR ELECTRONIC,  PHOTO-REALISTIC  REPROD-
 UCTION OF AN INDIVIDUAL'S LIKENESS, WHETHER ANIMATED OR STATIC.
   7.  "NAME"  MEANS THE ACTUAL OR ASSUMED NAME, OR NICKNAME, OF A LIVING
 OR DECEASED INDIVIDUAL THAT IDENTIFIES THAT INDIVIDUAL.
   8. "PERSON" MEANS ANY NATURAL PERSON, FIRM, ASSOCIATION,  PARTNERSHIP,
 CORPORATION,  COMPANY,  SYNDICATE, RECEIVER, COMMON LAW TRUST, CONSERVA-
 TOR, STATUTORY TRUST, OR ANY OTHER ENTITY  BY  WHATEVER  NAME  KNOWN  OR
 HOWEVER ORGANIZED, FORMED OR CREATED, AND INCLUDES NOT-FOR-PROFIT CORPO-
 RATIONS, ASSOCIATIONS, EDUCATIONAL AND RELIGIOUS INSTITUTIONS, POLITICAL
 PARTIES, AND COMMUNITY, CIVIC OR OTHER ORGANIZATIONS.
   9.  "PHOTOGRAPH"  MEANS  ANY  PHOTOGRAPH OR PHOTOGRAPHIC REPRODUCTION,
 STILL OR MOVING, OR ANY VIDEOTAPE,  ONLINE  OR  LIVE  TELEVISION  TRANS-
 MISSION, OF ANY INDIVIDUAL, IN WHICH THE INDIVIDUAL IS READILY IDENTIFI-
 ABLE.
   10.  "REGISTRATION TO ESTABLISH A CLAIM OF RIGHT" MEANS A REGISTRATION
 BY A PERSON CLAIMING TO BE A SUCCESSOR  IN  INTEREST  IN  THE  RIGHT  OF
 PUBLICITY OF A DECEASED INDIVIDUAL WITH THE DEPARTMENT OF STATE.
   11.   "RIGHT OF PUBLICITY" INCLUDES THE RIGHT OF PRIVACY, AND MEANS AN
 INDIVIDUAL'S NAME,  VOICE,  SIGNATURE  AND  LIKENESS,  INDIVIDUALLY  AND
 COLLECTIVELY KNOWN AS HIS OR HER RIGHT OF PUBLICITY.
   12.  "SIGNATURE" MEANS A HANDWRITTEN OR OTHERWISE LEGALLY BINDING FORM
 OF  AN INDIVIDUAL'S NAME, WRITTEN OR AUTHORIZED BY THAT INDIVIDUAL, THAT
 DISTINGUISHES THE INDIVIDUAL FROM ALL OTHER INDIVIDUALS.
   § 2. Section 50-f of the civil rights law, as  renumbered  by  section
 one of this act, is amended to read as follows:
   §  50-f. Right of [privacy] PUBLICITY FOR LIVING AND DECEASED INDIVID-
 UALS. [A person, firm or corporation that uses for advertising purposes,
 or for the purposes of trade, the  name,  portrait  or  picture  of  any
 living  person without having first obtained the written consent of such
 person, or if a minor of his or her parent or guardian, is guilty  of  a
 misdemeanor.]  A  LIVING OR DECEASED INDIVIDUAL'S NAME, VOICE, SIGNATURE
 AND LIKENESS, INDIVIDUALLY AND COLLECTIVELY KNOWN AS HIS OR HER RIGHT OF
 PUBLICITY, IS PERSONAL PROPERTY, FREELY TRANSFERABLE OR DESCENDIBLE,  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 THE CHAP-
 TER  OF  THE  LAWS OF TWO THOUSAND SEVENTEEN WHICH AMENDED THIS SECTION.
 SUCH RIGHT OF PUBLICITY SHALL NOT BE USED WITHOUT OBTAINING THE  WRITTEN
 CONSENT  OF THE INDIVIDUAL, HIS OR HER SUCCESSORS OR ASSIGNS AS PROVIDED
 FOR IN THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLIC-
 ITY OR, IN THE CASE OF A MINOR, OF HIS OR HER PARENT OR GUARDIAN.
   § 3. The civil rights law is amended  by  adding  three  new  sections
 50-g, 50-h and 50-i to read as follows:
   § 50-G. DURATION OF AN INDIVIDUAL'S RIGHT OF PUBLICITY. EVERY INDIVID-
 UAL'S  RIGHT  OF PUBLICITY SHALL CONTINUE TO EXIST FOR FORTY YEARS AFTER
 HIS OR HER DEATH, AND DOES NOT EXPIRE UPON THE DEATH OF THE  INDIVIDUAL,
 REGARDLESS  OF WHETHER THE LAW OF THE DOMICILE, RESIDENCE OR CITIZENSHIP
 OF THE INDIVIDUAL AT THE TIME OF DEATH OR OTHERWISE RECOGNIZES A SIMILAR
 OR IDENTICAL PROPERTY RIGHT.
   § 50-H. METHODS OF TRANSFER AND CONVEYANCE. 1. THE  RIGHTS  RECOGNIZED
 UNDER  THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLIC-
 ITY ARE FREELY TRANSFERABLE AND DESCENDIBLE, IN WHOLE OR IN PART, BY THE
 FOLLOWING:
   (A) CONTRACT;
   (B) LICENSE;
   (C) GIFT;

 S. 5857--A                          3
 
   (D) TRUST;
   (E)  TESTAMENTARY DOCUMENT. THE RIGHTS SHALL VEST IN THE PERSONS ENTI-
 TLED TO THE RIGHT OF PUBLICITY UNDER THE TESTAMENTARY INSTRUMENT OF  THE
 DECEASED INDIVIDUAL EFFECTIVE AS OF THE DATE OF THAT INDIVIDUAL'S DEATH.
 IN  THE  ABSENCE  OF AN EXPRESS TRANSFER IN A TESTAMENTARY INSTRUMENT OF
 THE DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY, A PROVISION IN THE  TESTA-
 MENTARY  INSTRUMENT  THAT PROVIDES FOR THE DISPOSITION OF THE RESIDUE OF
 THE DECEASED INDIVIDUAL'S ASSETS SHALL  BE  EFFECTIVE  TO  TRANSFER  THE
 RIGHTS  RECOGNIZED  UNDER  THIS  ARTICLE IN ACCORDANCE WITH THE TERMS OF
 THAT PROVISION; AND
   (F) INTESTATE SUCCESSION. THE RIGHT  TO  PUBLICITY  OF  AN  INDIVIDUAL
 DYING  INTESTATE  SHALL  BE  DISTRIBUTED  UNDER  THE  LAWS  OF INTESTATE
 SUCCESSION, AND THE RIGHTS AND REMEDIES OF THIS ARTICLE MAY BE EXERCISED
 AND ENFORCED BY A PERSON OR PERSONS WHO POSSESS  AT  LEAST  A  FIFTY-ONE
 PERCENT  INTEREST  OF  THE INDIVIDUAL'S RIGHT OF PUBLICITY. SUCH PERSONS
 SHALL MAKE A PROPORTIONAL ACCOUNTING TO, AND SHALL ACT AT ALL  TIMES  IN
 GOOD  FAITH  WITH  RESPECT TO, ANY OTHER PERSON IN WHOM THE RIGHTS BEING
 ENFORCED HAVE VESTED.
   2. THE RIGHTS ESTABLISHED BY THE PROVISIONS OF THIS ARTICLE PERTAINING
 TO THE RIGHT OF PUBLICITY SHALL ALSO BE FREELY TRANSFERABLE OR DESCENDI-
 BLE BY ANY SUBSEQUENT  OWNER  OF  THE  DECEASED  INDIVIDUAL'S  RIGHT  TO
 PUBLICITY  AS  RECOGNIZED  BY THIS ARTICLE. NOTHING IN THE PROVISIONS OF
 THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY SHALL BE CONSTRUED  TO
 RENDER  INVALID OR UNENFORCEABLE ANY CONTRACT ENTERED INTO BY A DECEASED
 INDIVIDUAL DURING HIS OR HER LIFETIME BY WHICH THE  DECEASED  INDIVIDUAL
 ASSIGNED  THE  RIGHTS,  IN  WHOLE OR IN PART, TO USE HIS OR HER RIGHT OF
 PUBLICITY AS DEFINED IN THIS ARTICLE.
   3. IF ANY DECEASED INDIVIDUAL DOES NOT  TRANSFER  HIS  OR  HER  RIGHTS
 UNDER  THIS  SECTION  BY  CONTRACT, LICENSE, GIFT, TRUST OR TESTAMENTARY
 DOCUMENT, AND THERE ARE NO SURVIVING PERSONS AS DESCRIBED  IN  PARAGRAPH
 (F) OF SUBDIVISION ONE OF THIS SECTION, THEN THE PROPERTY RIGHTS ASSOCI-
 ATED WITH THE DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY SHALL TERMINATE.
   4.  ANY  PERSON CLAIMING TO BE A SUCCESSOR IN INTEREST TO THE RIGHT OF
 PUBLICITY OF A DECEASED INDIVIDUAL UNDER THIS ARTICLE OR A LICENSEE OF A
 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY SHALL REGISTER THAT CLAIM  WITH
 THE  SECRETARY ON A FORM PRESCRIBED BY THE SECRETARY AND UPON PAYMENT OF
 A FEE OF FIFTY DOLLARS. THE FORM SHALL INCLUDE  THE  NAME  AND  DATE  OF
 DEATH  OF THE DECEASED INDIVIDUAL, THE NAME AND ADDRESS OF THE CLAIMANT,
 THE BASIS OF THE CLAIM, AND A SWORN AFFIDAVIT UNDER PENALTY  OF  PERJURY
 AS  TO  THE  RIGHTS  CLAIMED.  CLAIMS REGISTERED UNDER THIS REGISTRY AND
 INFORMATION REGARDING SUCH SUCCESSORS IN INTEREST TO THE DECEASED  INDI-
 VIDUAL'S RIGHT OF PUBLICITY SHALL BE PUBLIC RECORDS.
   5.  UPON  RECEIPT  AND  AFTER  FILING OF ANY DOCUMENT PURSUANT TO THIS
 SECTION, THE SECRETARY SHALL POST THE DOCUMENT  ALONG  WITH  THE  ENTIRE
 REGISTRY  OF  PERSONS  CLAIMING  TO  BE  SUCCESSORS  IN  INTEREST TO THE
 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY OR A REGISTERED LICENSEE  UNDER
 THIS  SECTION  UPON  AN  INTERNET WEBSITE DEVELOPED BY THE SECRETARY FOR
 SUCH PURPOSE. THE SECRETARY MAY REPRODUCE BY DIGITAL OR OTHER MEANS  ANY
 OF THE FILINGS OR DOCUMENTS AND DESTROY THE ORIGINAL FILING OR DOCUMENT.
   6. THE SECRETARY IS AUTHORIZED TO PROMULGATE SUCH REGULATIONS AS HE OR
 SHE  SHALL  DEEM  NECESSARY  TO IMPLEMENT THE PROVISIONS OF SUBDIVISIONS
 FOUR AND FIVE OF THIS SECTION.
   7. NO ACTION SHALL BE BROUGHT UNDER THE  PROVISIONS  OF  THIS  ARTICLE
 PERTAINING  TO THE RIGHT OF PUBLICITY BY REASON OF ANY USE OF A DECEASED
 INDIVIDUAL'S RIGHT OF PUBLICITY OCCURRING AFTER THE  EXPIRATION  OF  THE
 DURATION  OF  THE  RIGHT  OF PUBLICITY AS PROVIDED IN SECTION FIFTY-G OF

 S. 5857--A                          4
 
 THIS ARTICLE. FURTHERMORE, NO ACTION MAY BE BROUGHT UNDER THE PROVISIONS
 OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY FOR A VIOLATION  OF
 A  DECEASED  INDIVIDUAL'S  RIGHT OF PUBLICITY UNLESS THE CLAIM IS REGIS-
 TERED AND POSTED ON THE SECRETARY'S PUBLIC INTERNET WEBSITE WITHIN FORTY
 YEARS OF SUCH INDIVIDUAL'S DEATH.
   8.  IF THERE IS A RIGHT OF PUBLICITY REGISTRATION FOR A DECEASED INDI-
 VIDUAL, ANY PERSON SEEKING TO LICENSE RIGHT OF PUBLICITY FOR  THE  INDI-
 VIDUAL  SHALL  HAVE THE RIGHT TO RELY UPON SUCH REGISTRATION AND POSTING
 AND THEREBY PRESUME THAT THE PERSON WHO HAS REGISTERED AND POSTED HIS OR
 HER CLAIM ON THE SECRETARY'S PUBLIC INTERNET WEBSITE HAS  THE  RIGHT  TO
 ASSIGN  OR  LICENSE  THE  DECEASED  INDIVIDUAL'S RIGHT OF PUBLICITY. THE
 REGISTRATION AND POSTING OF A PERSON'S CLAIM TO A DECEASED  INDIVIDUAL'S
 RIGHT  OF  PUBLICITY  ON  THE  SECRETARY'S PUBLIC INTERNET WEBSITE SHALL
 CONSTITUTE A DEFENSE TO AN ACTION BROUGHT UNDER THE PROVISIONS  OF  THIS
 ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY.
   9. ANY PERSON WHO KNOWINGLY MAKES A FALSE OR FRAUDULENT REPRESENTATION
 IN  CONNECTION  WITH  A  REGISTRATION  WITH THE SECRETARY TO ESTABLISH A
 CLAIM TO A DECEASED INDIVIDUAL'S RIGHT OF  PUBLICITY  PURSUANT  TO  THIS
 SECTION  SHALL  BE  LIABLE  FOR ANY DAMAGES SUSTAINED AS A RESULT OF THE
 FALSE OR FRAUDULENT REGISTRATION AS DETERMINED BY A COURT  OF  COMPETENT
 JURISDICTION.
   10.  ANY DOCUMENT FILED WITH THE SECRETARY, WHETHER SUCH DOCUMENT IS A
 REPRODUCTION OR AN ORIGINAL, MAY BE DESTROYED BY  THE  SECRETARY  FORTY-
 SEVEN  YEARS  AFTER THE DEATH OF THE INDIVIDUAL WHOSE RIGHT OF PUBLICITY
 HAS BEEN REGISTERED THEREIN. THE SECRETARY  SHALL  REMOVE  ANY  DOCUMENT
 REGISTERED AND POSTED UPON THE PUBLIC INTERNET WEBSITE UPON SHOWING OF A
 COURT  ORDER FROM A COURT OF COMPETENT JURISDICTION THAT A PERSON CLAIM-
 ING TO BE A SUCCESSOR IN INTEREST TO A DECEASED  INDIVIDUAL'S  RIGHT  OF
 PUBLICITY  HAS  NO  PROPERTY  RIGHTS  IN  THE  RIGHT OF PUBLICITY OF THE
 DECEASED.
   § 50-I. NO ABROGATION OF RIGHTS AND REMEDIES. NOTHING CONTAINED IN THE
 PROVISIONS OF THIS ARTICLE RELATED TO THE RIGHT OF  PUBLICITY  SHALL  BE
 DEEMED  TO  ABROGATE OR OTHERWISE LIMIT ANY RIGHTS OR REMEDIES OTHERWISE
 CONFERRED BY FEDERAL OR STATE LAW.
   § 4. Section 51 of the civil rights law, as amended by chapter 674  of
 the laws of 1995, is amended to read as follows:
   §  51.  Action  for injunction and for damages. 1. APPLICABILITY.  THE
 PROVISIONS OF THIS ARTICLE RELATED TO THE RIGHT OF PUBLICITY APPLY TO AN
 ACT OR EVENT THAT OCCURS WITHIN NEW YORK, REGARDLESS OF A DECEASED INDI-
 VIDUAL'S DOMICILE, RESIDENCE OR CITIZENSHIP.   FURTHERMORE,  THE  RIGHTS
 RECOGNIZED  UNDER THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT
 OF PUBLICITY, SHALL BE DEEMED TO EXIST AT THE TIME OF  DEATH  REGARDLESS
 OF THE DOMICILE, RESIDENCE OR CITIZENSHIP OF ANY DECEASED INDIVIDUAL.
   2.  EXCEPTIONS.  CONSENT  FOR  USE  OF  ANOTHER  INDIVIDUAL'S RIGHT OF
 PUBLICITY AS PROVIDED IN THE PROVISIONS OF THIS  ARTICLE  PERTAINING  TO
 THE  RIGHT  OF  PUBLICITY  SHALL NOT BE REQUIRED WHEN USED IN CONNECTION
 WITH THE FOLLOWING:
   (A) NEWS, PUBLIC AFFAIRS OR SPORTS BROADCAST, INCLUDING THE  PROMOTION
 OF  AND ADVERTISING FOR A PUBLIC AFFAIRS OR SPORTS BROADCAST, AN ACCOUNT
 OF PUBLIC INTEREST OR A POLITICAL CAMPAIGN;
   (B) IN:
   (I) A PLAY, BOOK, MAGAZINE,  NEWSPAPER,  MUSICAL  COMPOSITION,  VISUAL
 WORK,  WORK  OF ART, AUDIOVISUAL WORK, RADIO OR TELEVISION PROGRAM IF IT
 IS FICTIONAL OR NONFICTIONAL ENTERTAINMENT, OR A DRAMATIC,  LITERARY  OR
 MUSICAL WORK;

 S. 5857--A                          5

   (II)  A WORK OF POLITICAL, PUBLIC INTEREST OR NEWSWORTHY VALUE INCLUD-
 ING A COMMENT, CRITICISM, PARODY, SATIRE OR A TRANSFORMATIVE CREATION OF
 A WORK OF AUTHORSHIP; OR
   (III) AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR ANY OF THE WORKS
 DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION OR THIS PARAGRAPH; OR
   (C)  USE  OF THE RIGHT OF PUBLICITY OF A DECEASED INDIVIDUAL WHERE THE
 LICENSEE OR SUCCESSOR IN INTEREST HAS FAILED  TO  REGISTER  AND  POST  A
 CLAIM  OF RIGHT UNDER SECTION FIFTY-H OF THIS ARTICLE UNTIL SUCH TIME AS
 A CLAIM OF RIGHT HAS BEEN REGISTERED AND POSTED AS REQUIRED  UNDER  SUCH
 SECTION.
   (D)  HOWEVER,  SUBJECT  TO  THE  FIRST  AMENDMENT OF THE UNITED STATES
 CONSTITUTION AND SECTION EIGHT OF ARTICLE ONE  OF  THE  NEW  YORK  STATE
 CONSTITUTION, A WORK THAT IS EXEMPT UNDER THIS SUBDIVISION THAT INCLUDES
 A  COMMERCIAL  USE AND REPLICATES THE PROFESSIONAL PERFORMANCE OR ACTIV-
 ITIES RENDERED BY AN INDIVIDUAL, SHALL NOT BE EXEMPT UNDER THIS SUBDIVI-
 SION WHERE THE REPLICATION IS INEXTRICABLY INTERTWINED WITH THE RIGHT OF
 PUBLICITY OF SUCH INDIVIDUAL.
   3. LIMITED IMMUNITY. OWNERS OR EMPLOYEES OF ANY MEDIUM USED FOR ADVER-
 TISING INCLUDING, BUT NOT LIMITED TO, NEWSPAPERS, MAGAZINES,  RADIO  AND
 TELEVISION  NETWORKS AND STATIONS, CABLE TELEVISION SYSTEMS, BILLBOARDS,
 AND TRANSIT ADS, BY WHOM ANY USE OF AN INDIVIDUAL'S RIGHT  OF  PUBLICITY
 FOR  COMMERCIAL  PURPOSES  IN  VIOLATION  OF  THAT INDIVIDUAL'S RIGHT OF
 PUBLICITY IS PUBLISHED OR DISSEMINATED, SHALL NOT BE  LIABLE  UNDER  THE
 PROVISIONS  OF  THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY UNLESS
 IT IS ESTABLISHED THAT THE OWNERS OR  EMPLOYEES  HAD  KNOWLEDGE  OF  THE
 UNAUTHORIZED  USE  AS  PROHIBITED  BY  THE  PROVISIONS  OF  THIS ARTICLE
 PERTAINING TO THE RIGHT OF PUBLICITY.
   4. ACTION FOR INJUNCTION AND  FOR  DAMAGES.  Any  [person]  INDIVIDUAL
 EITHER LIVING OR DECEASED whose [name, portrait, picture or voice] RIGHT
 OF  PUBLICITY  is  used within this state for advertising purposes [or],
 for the purposes of trade OR FOR PURPOSES OF FUND-RAISING  OR  SOLICITA-
 TION OF DONATIONS, without the written consent first obtained as [above]
 provided [may] IN THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT
 OF  PUBLICITY  IS ENTITLED TO maintain an equitable action FOR VIOLATION
 OF THE INDIVIDUAL'S RIGHT OF PUBLICITY in  the  supreme  court  of  this
 state  against  the  person[,  firm  or corporation] so using his [name,
 portrait, picture or voice] OR HER RIGHT OF PUBLICITY,  to  prevent  and
 restrain  the  use thereof; and may also sue and recover damages for any
 injuries sustained INCLUDING AN AMOUNT EQUAL TO  THE  GREATER  OF  SEVEN
 HUNDRED  FIFTY DOLLARS OR COMPENSATORY DAMAGES by reason of such use and
 if  the  defendant  shall  have  knowingly  used  such  person's  [name,
 portrait,  picture  or  voice]  RIGHT  OF PUBLICITY in such manner as is
 forbidden or declared to be unlawful by [section fifty]  THE  PROVISIONS
 of this article RELATING TO THE RIGHT OF PUBLICITY, the [jury] FINDER OF
 FACT,  in  its  discretion, may award exemplary damages. [But nothing] A
 VIOLATION OF AN INDIVIDUAL'S RIGHT OF PUBLICITY MAY OCCUR WITHOUT REGARD
 TO WHETHER THE USE OR ACTIVITY IS FOR PROFIT OR NOT-FOR-PROFIT WITH  THE
 EXCEPTION  OF  THE  USE  OF AN INDIVIDUAL'S RIGHT OF PUBLICITY FOR FUND-
 RAISING  PURPOSES  BY  NOT-FOR-PROFIT  RADIO  AND  TELEVISION   STATIONS
 LICENSED BY THE FEDERAL COMMUNICATIONS COMMISSION OF THE UNTIED STATES.
   5.  NO  DEFENSE.  IT  SHALL  NOT CONSTITUTE A DEFENSE TO AN ACTION FOR
 VIOLATION OF AN INDIVIDUAL'S RIGHT  OF  PUBLICITY  THAT  SUCH  VIOLATION
 INCLUDES MORE THAN ONE INDIVIDUAL.
   6.  USE  AND TRANSFER.   NOTHING contained in this article shall be so
 construed as to prevent any [person, firm or corporation] INDIVIDUAL  OR
 PERSON  from  selling  or otherwise transferring any material containing

 S. 5857--A                          6
 
 such [name, portrait, picture or voice] RIGHT OF PUBLICITY  AS  PROVIDED
 IN  THE PROVISIONS OF THIS ARTICLE RELATING TO THE RIGHT OF PUBLICITY in
 whatever medium to any user of such [name, portrait, picture  or  voice]
 RIGHT  OF PUBLICITY, or to any third party for sale or transfer directly
 or indirectly to such a user, for use in  a  manner  lawful  under  this
 article[; nothing].
   7.  PHOTOGRAPHERS.  NOTHING  contained  in  this  article  shall be so
 construed as to prevent any person[, firm  or  corporation,]  practicing
 the  profession  of photography, from exhibiting [in or about his or its
 establishment] specimens of the work of such  [establishment]  PHOTOGRA-
 PHER, unless the same is continued by such person[, firm or corporation]
 after  written  notice  objecting thereto has been given by the [person]
 INDIVIDUAL portrayed[; and nothing].
   8. MANUFACTURERS, WRITERS, COMPOSERS AND ARTISTS. NOTHING contained in
 this article shall be so construed as to prevent any  person[,  firm  or
 corporation]  from using the [name, portrait, picture or voice of] RIGHT
 OF PUBLICITY OWNED BY any manufacturer or dealer in connection with  the
 goods, wares and merchandise manufactured, produced or dealt in by [him]
 THE  MANUFACTURER  which  [he]  has  BEEN  sold or disposed of with such
 [name, portrait, picture or voice] RIGHT OF PUBLICITY used in connection
 therewith; or from using the [name, portrait, picture or voice] RIGHT OF
 PUBLICITY of any author, composer or artist in connection  with  his  OR
 HER  literary,  musical or artistic productions which he OR SHE has sold
 or disposed of with such [name, portrait, picture  or  voice]  RIGHT  OF
 PUBLICITY used in connection therewith.
   9.  COPYRIGHT  OWNERS  OF A SOUND RECORDING. Nothing contained in this
 section shall be construed to prohibit the copyright owner  of  a  sound
 recording from disposing of, dealing in, licensing or selling that sound
 recording  to any party, if the right to dispose of, deal in, license or
 sell such sound recording has been conferred by contract or other  writ-
 ten document by such living person or the holder of such right. [Nothing
 contained  in  the  foregoing  sentence  shall  be deemed to abrogate or
 otherwise limit any rights or remedies otherwise  conferred  by  federal
 law or state law.]
   10.  TERMINATION  OF  POST  MORTEM  RIGHT OF PUBLICITY. NOTHING IN THE
 PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY SHALL BE
 CONSTRUED AS PROHIBITING THE USE OF THE DECEASED INDIVIDUAL'S  RIGHT  OF
 PUBLICITY  THAT OCCURS AFTER THE EXPIRATION OF FORTY YEARS FOLLOWING HIS
 OR HER DEATH.   NOR SHALL ANYTHING IN THE  PROVISIONS  OF  THIS  ARTICLE
 PERTAINING  TO THE RIGHT OF PUBLICITY BE CONSTRUED AS CREATING LIABILITY
 OR GIVING RISE TO ANY REMEDY FOR ANY ACTIONS OR  CONDUCT  INVOLVING  THE
 USE OF A DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY THAT OCCURRED PRIOR TO
 THE  EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND SEVENTEEN
 WHICH AMENDED THIS SECTION.
   11. STATUTE OF LIMITATIONS. ACTIONS BROUGHT UNDER  THE  PROVISIONS  OF
 THIS  ARTICLE  PERTAINING  TO  THE RIGHT OF PUBLICITY SHALL BE COMMENCED
 WITHIN ONE YEAR OF THE DATE OF DISCOVERY OF THE INJURY TO THE  PLAINTIFF
 OR  FROM  THE  DATE  THROUGH  THE  EXERCISE OF DUE DILIGENCE SUCH INJURY
 SHOULD HAVE BEEN DISCOVERED BY THE PLAINTIFF, WHICHEVER IS EARLIER.
   § 5. The section heading and subdivision 3 of section 215 of the civil
 practice law and rules are amended to read as follows:
   Actions to be commenced within one year: against sheriff,  coroner  or
 constable; for escape of prisoner; for assault, battery, false imprison-
 ment, malicious prosecution, libel or slander; for violation of right of
 [privacy]  PUBLICITY;  for  penalty  given  to  informer; on arbitration
 award.

 S. 5857--A                          7
 
   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] PUBLICITY under
 [section fifty-one] ARTICLE FIVE of the civil rights law;
   § 6. This act shall take effect on the one hundred eightieth day after
 it  shall have become a law, and shall apply to deceased individuals who
 died on or after such date.

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2017-S5857B (ACTIVE) - Details

See Assembly Version of this Bill:: A8155
Current Committee:: Senate Judiciary
Law Section:: Civil Rights Law
Laws Affected:: Ren §50 to be §50-f, add §§50, 50-g, 50-h & 50-i, amd §§50-f & 51, Civ Rts L; amd §215, CPLR
Versions Introduced in 2019-2020 Legislative Session:: S5959, A5605

2017-S5857B (ACTIVE) - Summary

2017-S5857B (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S5857B

SPONSOR: SAVINO
 
TITLE OF BILL:

An act to amend the civil rights law, in relation to the right of priva-
cy and 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

 
PURPOSE OF BILL:

To create a right of publicity for deceased individuals and a registry
to publicly post such interests upon thereby giving notice to people who
may seek to use an individual's right of publicity in New York State for
advertising purposes, or for the purposes of trade. In addition this
bill addresses the ability of technology to create digital avatars and
makes regulations regarding their use.

 
SUMMARY OF PROVISIONS:

§ .50. Definitions. For the purposes of sections fifty-f, fifty-g,
fifty-h, fifty-i and fifty one of this article, the following terms are
defined:

1. "Deceased individual"

2. "Digital replica"

3. "Secretary"

4. "Fund-raising"

5. "Individual"

6. "Name"

7. "Person"

8. "Persona"

9. "Right of privacy"

10. "Right of publicity"

11. "Signature"

§ 50-f. Right of publicity for living and deceased individuals.  Creates
a right of publicity for individuals, whether living or deceased, for
actions that occur within New York State. This legislation establishes
that a living or deceased individual's persona, is personal property,
freely transferable or descendible, 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. An individual's right of publicity cannot be
used for advertising purposes or purposes of trade without obtaining the
written consent of the individual, his or her successors or assigns, or
in the case of a minor, of his or her parent or guardian as limited by

section 35.03 of the Arts and Cultural Affairs Law. Furthermore, a
parent may not assign a child's Right of Publicity.

§ 50-g. Duration of an individual's right of publicity. Establishes that
an individual's right of publicity continues to exist for forty years
after their death.

§ 50-h. Methods of transfer and conveyance. Establishes the ways that an
individual's right of publicity may be transferred, including by
contract, license, gift, trust, will, testamentary. instrument or intes-
tacy. After an individual dies, the person who is his or her successor
in interest with an ownership of fifty one percent or more of the
decedent's right of publicity may register such interest with the New
York State secretary of state for a fee of $100.00. Unless the right of
publicity is registered within six months of the individual's death
there is no protection against the use of a deceased individual's right
of publicity. After forty years have passed, the deceased individual's
right of publicity is no longer protected against use in advertising and
trade. After forty seven years have passed the secretary of state may
destroy all information related to the lapsed right of publicity.

§ 50-i. No abrogation of rights and remedies. States that nothing
contained in the provisions of this article related to the right of
publicity shall be deemed to abrogate or otherwise limit any rights or
remedies otherwise conferred by federal or state law.

§ 51. Action for injunction and for damages. Subparagraph one determines
that this legislation applies to any act that occurs in New York State.
Subparagraph two discusses when consent for use of another individual's
right of publicity as provided in the provisions of this Article
pertaining to the right of publicity shall not be required with a few
limited exception.

Subparagraph three discusses the use of digital replicas for purposes of
trade in an expressive work and limited immunities for such use.
Subparagraph four discusses the use of digital replicas in pornographic
work without the consent of the individual.  Subparagraph five discusses
the limited immunity for certain people unless it is established that
the owners or employees had knowledge of the unauthorized use.

Subparagraph six, action for injunction or damages, states that if an
individual's right of publicity is used within this state for advertis-
ing purposes, or for the purposes of trade without written consent the
individual is entitled to maintain an equitable action for violation of
the individual's right of privacy or right of publicity. In addition,
'to prevent and restrain the use thereof; an individual may also sue and
recover damages for any injuries sustained, including an amount equal to
the greater of seven hundred fifty dollars ($750) or compensatory
damages by reason of such use and if the defendant shall have knowingly
used such person's right of publicity the finder of fact, in its
discretion, may award exemplary damages.

Subparagraph seven clarifies that when using more than one person's
persona it is still a violation under the right of privacy or the right
of publicity if the necessary written permission is not obtained prior
to such use.


Subparagraphs eight, nine, ten and eleven are updated and modernized and
made easier to understand.

Subparagraph twelve discusses the termination of the post mortem right
of publicity.

Subparagraph thirteen discusses the statute of limitations which is one
year.

Section five amends the civil practice law and rules. Section six is the
severability clause.

Section seven is the effective date, on the one hundred and eightieth
day after becoming a law.

 
JUSTIFICATION:

The term "Right of Publicity" originated in the United States Court of
Appeals for the Second Circuit in 1953 in Haelan Laboratories v.  Topps
Chewing Gum to describe the right of individuals to control the use of
their name and likenesses for commercial and other valuable purposes.
Since then, more than half of the states have granted rights of public-
ity to individuals through either the common law or by statute.

The Right of Publicity refers to every individual's inherent right to
control the commercial use of his or her personal characteristics, which
can include name, portrait or picture, voice or signature, each a part
of an individual's persona. Recently, in Lohann v. Take Two (Lohan v
Take-Two Interactive Software, Inc. 2018 NY Slip Op 02208 Decided on
March 29, 2018 Court of Appeals Fahey, J. Published by New York State
Law Reporting Bureau pursuant to Judiciary Law § 431.), the Court stated
that "A computer generated image may constitute a "portrait" within the
meaning of N.Y. Civ. Rights Law 50 and 51, but the disputed images in
the video game central to this matter were not recognizable as Lindsay
Lohan, and therefore, Lohan's complaint was properly dismissed."

The most critical function of the Right of Publicity is control. The
Right of Publicity, even though it is a property right, is not merely a
property asset, like a painting or real estate, for estate tax purposes.
The Right of Publicity ensures that if a person, or that person's
successor in interest, does not seek to commercialize the right, they
are not compelled to do so.

This bill provides for a post mortem right of publicity for forty years
after the death of an individual, allowing successors in interest to
provide notice of such interest through a public registration and post-
ing maintained by the New York Secretary of State. Along with providing
for a post mortem right of publicity the bill also has exclusions
consistent with constitutionally protected freedom of speech.

Finally, the Right of Publicity created through this legislation applies
to acts that occur within New York State.

In conclusion, this bill is balanced in protecting essential first
amendment rights consistent with current law while maintaining the
current status of the right of privacy law and still providing
protections for an individual's right of publicity, whether they are a
child or an adult, during life and for forty years after death.
 
LEGISLATIVE HISTORY:

2017 - died on 3rd Rdg. in both Houses.

 
FISCAL IMPLICATIONS FOR STATE AND LOCAL GOVERNMENTS:

To be determined.

 
EFFECTIVE DATE:
This act shall take place on the one hundred and eightieth day after it
shall have become a law, and shall apply to all living individuals and
deceased individuals who died on or after such date.

2017-S5857B (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5857--B
     Cal. No. 1131
 
                        2017-2018 Regular Sessions
 
                             I N  S E N A T E
 
                                May 3, 2017
                                ___________
 
 Introduced  by  Sens. SAVINO, AKSHAR, ALCANTARA, AVELLA, CROCI, HAMILTON
   -- read twice and ordered printed, and when printed to be committed to
   the Committee on Judiciary -- 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 -- recommitted to the Committee on Judiciary in accord-
   ance with Senate Rule 6, sec. 8 -- 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 priva-
   cy and 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:
 
   Section 1. Section 50 of the civil rights law  is  renumbered  section
 50-f and a new section 50 is added to read as follows:
   §  50.  DEFINITIONS.    FOR THE PURPOSES OF SECTIONS FIFTY-F, FIFTY-G,
 FIFTY-H, FIFTY-I AND FIFTY-ONE OF  THIS  ARTICLE,  THE  FOLLOWING  TERMS
 SHALL HAVE THE FOLLOWING MEANINGS:
   1.  "DECEASED  INDIVIDUAL"  MEANS ANY INDIVIDUAL, INCLUDING HIS OR HER
 PERSONA, WHO HAS DIED.
   2. "DIGITAL REPLICA" MEANS A COMPUTER-GENERATED OR ELECTRONIC  REPROD-
 UCTION OF A LIVING OR DECEASED INDIVIDUAL'S LIKENESS OR VOICE THAT REAL-
 ISTICALLY  DEPICTS  THE  LIKENESS  OR  VOICE  OF  THE  INDIVIDUAL  BEING
 PORTRAYED.  A  DIGITAL  REPLICA  IS  INCLUDED  WITHIN  AN   INDIVIDUAL'S
 PORTRAIT.
   3. "SECRETARY" MEANS THE SECRETARY OF STATE.
   4.  "FUND-RAISING" MEANS AN ORGANIZED ACTIVITY TO SOLICIT DONATIONS OF
 MONEY OR OTHER GOODS OR SERVICES FROM PERSONS OR ENTITIES BY  AN  ORGAN-
 IZATION, COMPANY OR PUBLIC ENTITY.
   5. "INDIVIDUAL" MEANS A NATURAL PERSON, LIVING OR DEAD.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD11325-06-8

 S. 5857--B                          2
 
   6.  "NAME"  MEANS THE ACTUAL OR ASSUMED NAME, OR NICKNAME, OF A LIVING
 OR DECEASED INDIVIDUAL THAT IDENTIFIES THAT INDIVIDUAL.
   7.  "PERSON" MEANS ANY NATURAL PERSON, FIRM, ASSOCIATION, PARTNERSHIP,
 CORPORATION, COMPANY, SYNDICATE, RECEIVER, COMMON LAW  TRUST,  CONSERVA-
 TOR,  STATUTORY  TRUST,  OR  ANY  OTHER ENTITY BY WHATEVER NAME KNOWN OR
 HOWEVER ORGANIZED, FORMED OR CREATED, AND INCLUDES NOT-FOR-PROFIT CORPO-
 RATIONS, ASSOCIATIONS, EDUCATIONAL AND RELIGIOUS INSTITUTIONS, POLITICAL
 PARTIES, AND COMMUNITY, CIVIC OR OTHER ORGANIZATIONS.
   8. "PERSONA" MEANS, INDIVIDUALLY OR COLLECTIVELY, THE  NAME,  PORTRAIT
 OR PICTURE, VOICE, OR SIGNATURE OF AN INDIVIDUAL.
   9.  "RIGHT  OF PRIVACY" MEANS A PERSONAL RIGHT, WHICH PROTECTS AGAINST
 THE UNAUTHORIZED USE OF A LIVING INDIVIDUAL'S NAME, PORTRAIT OR PICTURE,
 VOICE, OR SIGNATURE FOR ADVERTISING PURPOSES OR PURPOSES OF TRADE  WITH-
 OUT WRITTEN CONSENT, EXTINGUISHED UPON DEATH.
   10.  "RIGHT OF PUBLICITY" MEANS AN INDEPENDENT PROPERTY RIGHT, DERIVED
 FROM AND INDEPENDENT OF THE RIGHT OF PRIVACY, WHICH PROTECTS  THE  UNAU-
 THORIZED  USE  OF  A  LIVING  OR DECEASED INDIVIDUAL'S NAME, PORTRAIT OR
 PICTURE, VOICE, OR SIGNATURE FOR ADVERTISING  PURPOSES  OR  PURPOSES  OF
 TRADE WITHOUT WRITTEN CONSENT.
   11.  "SIGNATURE" MEANS A HANDWRITTEN OR OTHERWISE LEGALLY BINDING FORM
 OF AN INDIVIDUAL'S NAME, WRITTEN OR AUTHORIZED BY THAT INDIVIDUAL, WHICH
 DISTINGUISHES THE INDIVIDUAL FROM ALL OTHER INDIVIDUALS.
   § 2. Section 50-f of the civil rights law, as  renumbered  by  section
 one of this act, is amended to read as follows:
   §  50-f.  Right of privacy AND RIGHT OF PUBLICITY.  [A person, firm or
 corporation that uses for advertising purposes, or for the  purposes  of
 trade, the name, portrait or picture of any living person without having
 first  obtained the written consent of such person, or if a minor of his
 or her parent or guardian, is guilty  of  a  misdemeanor.]  1.  FOR  THE
 PURPOSES  OF  THE  RIGHT OF PRIVACY, A LIVING INDIVIDUAL'S PERSONA SHALL
 NOT BE USED FOR  ADVERTISING  PURPOSES  OR  PURPOSES  OF  TRADE  WITHOUT
 OBTAINING  THE  WRITTEN  CONSENT OF SUCH PERSON, OR IF A MINOR OF HIS OR
 HER PARENT OR GUARDIAN.
   2. FOR THE PURPOSES OF THE RIGHT OF PUBLICITY, A  LIVING  OR  DECEASED
 INDIVIDUAL'S  PERSONA  IS  PERSONAL  PROPERTY,  FREELY  TRANSFERABLE  OR
 DESCENDIBLE, 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 SUBDIVISION.  SUCH RIGHT OF PUBLICITY SHALL NOT BE USED FOR
 ADVERTISING PURPOSES OR THE PURPOSES  OF  TRADE  WITHOUT  OBTAINING  THE
 WRITTEN  CONSENT  OF THE INDIVIDUAL, HIS OR HER SUCCESSORS OR ASSIGNS AS
 PROVIDED FOR IN THE PROVISIONS OF THIS ARTICLE PERTAINING TO  THE  RIGHT
 OF  PUBLICITY.  IN  THE  CASE  OF A MINOR, WRITTEN CONSENT MUST FIRST BE
 OBTAINED OF HIS OR HER PARENT OR GUARDIAN FOR THE PURPOSES OF AN  EXCLU-
 SIVE  OR  NON-EXCLUSIVE  LICENSE AS LIMITED BY SECTION 35.03 OF THE ARTS
 AND CULTURAL AFFAIRS LAW.  A  PARENT  OR  GUARDIAN  IS  PROHIBITED  FROM
 ASSIGNING  A  MINOR'S  RIGHT OF PUBLICITY, AND SUCH ASSIGNMENTS SHALL BE
 UNENFORCEABLE. NOTHING IN THIS SECTION SHALL LIMIT ANY OTHER RIGHTS SUCH
 MINOR MAY HAVE.
   § 3. The civil rights law is amended  by  adding  three  new  sections
 50-g, 50-h and 50-i to read as follows:
   § 50-G. DURATION OF AN INDIVIDUAL'S RIGHT OF PUBLICITY. EVERY INDIVID-
 UAL'S  RIGHT  OF PUBLICITY SHALL CONTINUE TO EXIST FOR FORTY YEARS AFTER
 HIS OR HER DEATH, AND DOES NOT EXPIRE UPON THE DEATH OF THE INDIVIDUAL.
   § 50-H. METHODS OF TRANSFER AND CONVEYANCE. 1. THE  RIGHTS  RECOGNIZED
 UNDER  THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLIC-

 S. 5857--B                          3
 
 ITY ARE FREELY TRANSFERABLE AND DESCENDIBLE, IN WHOLE OR IN PART, BY THE
 FOLLOWING:
   (A) CONTRACT;
   (B) LICENSE;
   (C) GIFT;
   (D) TRUST;
   (E)  TESTAMENTARY DOCUMENT. THE RIGHTS SHALL VEST IN THE PERSONS ENTI-
 TLED TO THE RIGHT OF PUBLICITY UNDER THE TESTAMENTARY INSTRUMENT OF  THE
 DECEASED INDIVIDUAL EFFECTIVE AS OF THE DATE OF THAT INDIVIDUAL'S DEATH.
 IN  THE  ABSENCE  OF AN EXPRESS TRANSFER IN A TESTAMENTARY INSTRUMENT OF
 THE DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY, A PROVISION IN THE  TESTA-
 MENTARY  INSTRUMENT  THAT PROVIDES FOR THE DISPOSITION OF THE RESIDUE OF
 THE DECEASED INDIVIDUAL'S ASSETS SHALL  BE  EFFECTIVE  TO  TRANSFER  THE
 RIGHTS  RECOGNIZED  UNDER  THIS  ARTICLE IN ACCORDANCE WITH THE TERMS OF
 THAT PROVISION; AND
   (F) INTESTATE SUCCESSION. THE RIGHT  TO  PUBLICITY  OF  AN  INDIVIDUAL
 DYING  INTESTATE  SHALL  BE  DISTRIBUTED  UNDER  THE  LAWS  OF INTESTATE
 SUCCESSION, AND THE RIGHTS AND REMEDIES OF THIS ARTICLE MAY BE EXERCISED
 AND ENFORCED BY A PERSON OR PERSONS WHO POSSESS  AT  LEAST  A  FIFTY-ONE
 PERCENT  INTEREST  OF  THE INDIVIDUAL'S RIGHT OF PUBLICITY. SUCH PERSONS
 SHALL MAKE A PROPORTIONAL ACCOUNTING TO, AND SHALL ACT AT ALL  TIMES  IN
 GOOD  FAITH  WITH  RESPECT TO, ANY OTHER PERSON IN WHOM THE RIGHTS BEING
 ENFORCED HAVE VESTED.
   2. THE RIGHTS ESTABLISHED BY THE PROVISIONS OF THIS ARTICLE PERTAINING
 TO THE RIGHT OF PUBLICITY SHALL ALSO BE FREELY TRANSFERABLE OR DESCENDI-
 BLE BY ANY SUBSEQUENT  OWNER  OF  THE  DECEASED  INDIVIDUAL'S  RIGHT  TO
 PUBLICITY  AS  RECOGNIZED  BY THIS ARTICLE. NOTHING IN THE PROVISIONS OF
 THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY SHALL BE CONSTRUED  TO
 RENDER  INVALID OR UNENFORCEABLE ANY CONTRACT ENTERED INTO BY A DECEASED
 INDIVIDUAL DURING HIS OR HER LIFETIME BY WHICH THE  DECEASED  INDIVIDUAL
 ASSIGNED  THE  RIGHTS,  IN  WHOLE OR IN PART, TO USE HIS OR HER RIGHT OF
 PUBLICITY AS DEFINED IN THIS ARTICLE.
   3. IF ANY DECEASED INDIVIDUAL DOES NOT  TRANSFER  HIS  OR  HER  RIGHTS
 UNDER  THIS  SECTION  BY  CONTRACT, LICENSE, GIFT, TRUST OR TESTAMENTARY
 DOCUMENT, AND THERE ARE NO SURVIVING PERSONS AS DESCRIBED  IN  PARAGRAPH
 (F) OF SUBDIVISION ONE OF THIS SECTION, THEN THE PROPERTY RIGHTS ASSOCI-
 ATED WITH THE DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY SHALL TERMINATE.
   4.  ANY  PERSON CLAIMING TO BE A SUCCESSOR IN INTEREST TO THE RIGHT OF
 PUBLICITY OF A DECEASED INDIVIDUAL UNDER THIS ARTICLE OR A LICENSEE OF A
 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY SHALL REGISTER THAT CLAIM  WITH
 THE  SECRETARY ON A FORM PRESCRIBED BY THE SECRETARY AND UPON PAYMENT OF
 A FEE OF ONE HUNDRED DOLLARS. THE FORM SHALL INCLUDE THE NAME  AND  DATE
 OF  DEATH OF THE DECEASED INDIVIDUAL, THE NAME AND ADDRESS OF THE CLAIM-
 ANT, THE BASIS OF THE CLAIM, AND A  SWORN  AFFIDAVIT  UNDER  PENALTY  OF
 PERJURY  AS TO THE RIGHTS CLAIMED. CLAIMS REGISTERED UNDER THIS REGISTRY
 AND INFORMATION REGARDING SUCH SUCCESSORS IN INTEREST  TO  THE  DECEASED
 INDIVIDUAL'S RIGHT OF PUBLICITY SHALL BE PUBLIC RECORDS.
   5.  UPON  RECEIPT  AND  AFTER  FILING OF ANY DOCUMENT PURSUANT TO THIS
 SECTION, THE SECRETARY SHALL POST THE DOCUMENT  ALONG  WITH  THE  ENTIRE
 REGISTRY  OF  PERSONS  CLAIMING  TO  BE  SUCCESSORS  IN  INTEREST TO THE
 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY OR A REGISTERED LICENSEE  UNDER
 THIS  SECTION  UPON  AN  INTERNET WEBSITE DEVELOPED BY THE SECRETARY FOR
 SUCH PURPOSE. THE SECRETARY MAY REPRODUCE BY DIGITAL OR OTHER MEANS  ANY
 OF THE FILINGS OR DOCUMENTS AND DESTROY THE ORIGINAL FILING OR DOCUMENT.

 S. 5857--B                          4
 
   6. THE SECRETARY IS AUTHORIZED TO PROMULGATE SUCH REGULATIONS AS HE OR
 SHE  SHALL  DEEM  NECESSARY  TO IMPLEMENT THE PROVISIONS OF SUBDIVISIONS
 FOUR AND FIVE OF THIS SECTION.
   7.  NO  ACTION  SHALL  BE BROUGHT UNDER THE PROVISIONS OF THIS ARTICLE
 PERTAINING TO THE RIGHT OF PUBLICITY BY REASON OF ANY USE OF A  DECEASED
 INDIVIDUAL'S  RIGHT  OF  PUBLICITY OCCURRING AFTER THE EXPIRATION OF THE
 DURATION OF THE RIGHT OF PUBLICITY AS PROVIDED  IN  SECTION  FIFTY-G  OF
 THIS ARTICLE. FURTHERMORE, NO ACTION MAY BE BROUGHT UNDER THE PROVISIONS
 OF  THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY FOR A VIOLATION OF
 A DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY UNLESS THE  CLAIM  IS  REGIS-
 TERED.  HOWEVER,  AN  ACTION MAY BE BROUGHT UNDER THE PROVISIONS OF THIS
 ARTICLE PERTAINING TO THE RIGHT  OF  PUBLICITY  FOR  A  VIOLATION  OF  A
 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY:
   (A)  FOR  ANY VIOLATION THAT OCCURS PRIOR TO REGISTRATION PROVIDED THE
 CLAIM IS REGISTERED WITHIN SIX MONTHS FOLLOWING THE INDIVIDUAL'S  DEATH;
 OR
   (B)  FOR  ANY  SUBSEQUENT PUBLICATION, MANUFACTURING, DISTRIBUTION, OR
 SALE OR USE IN VIOLATION OF A DECEASED INDIVIDUAL'S RIGHT  OF  PUBLICITY
 ONCE A CLAIM HAS BEEN REGISTERED.
   8.  IF THERE IS A RIGHT OF PUBLICITY REGISTRATION FOR A DECEASED INDI-
 VIDUAL, ANY PERSON SEEKING TO LICENSE THE RIGHT  OF  PUBLICITY  FOR  THE
 INDIVIDUAL SHALL HAVE THE RIGHT TO RELY UPON SUCH REGISTRATION AND POST-
 ING  AND  THEREBY  PRESUME THAT THE PERSON WHO HAS REGISTERED AND POSTED
 HIS OR HER CLAIM ON THE SECRETARY'S  PUBLIC  INTERNET  WEBSITE  HAS  THE
 RIGHT TO ASSIGN OR LICENSE THE DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY.
 THE  REGISTRATION AND POSTING OF A PERSON'S CLAIM TO A DECEASED INDIVID-
 UAL'S RIGHT OF PUBLICITY ON  THE  SECRETARY'S  PUBLIC  INTERNET  WEBSITE
 SHALL  CONSTITUTE A DEFENSE TO AN ACTION BROUGHT UNDER THE PROVISIONS OF
 THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY.
   9. ANY PERSON WHO KNOWINGLY MAKES A FALSE OR FRAUDULENT REPRESENTATION
 IN CONNECTION WITH A REGISTRATION WITH  THE  SECRETARY  TO  ESTABLISH  A
 CLAIM  TO  A  DECEASED  INDIVIDUAL'S RIGHT OF PUBLICITY PURSUANT TO THIS
 SECTION SHALL BE LIABLE FOR ANY DAMAGES SUSTAINED AS  A  RESULT  OF  THE
 FALSE  OR  FRAUDULENT REGISTRATION AS DETERMINED BY A COURT OF COMPETENT
 JURISDICTION.
   10. ANY DOCUMENT FILED WITH THE SECRETARY, WHETHER SUCH DOCUMENT IS  A
 REPRODUCTION  OR  AN  ORIGINAL, MAY BE DESTROYED BY THE SECRETARY FORTY-
 SEVEN YEARS AFTER THE DEATH OF THE INDIVIDUAL WHOSE RIGHT  OF  PUBLICITY
 HAS  BEEN  REGISTERED  THEREIN.  THE SECRETARY SHALL REMOVE ANY DOCUMENT
 REGISTERED AND POSTED UPON THE PUBLIC INTERNET WEBSITE UPON SHOWING OF A
 COURT ORDER FROM A COURT OF COMPETENT JURISDICTION THAT A PERSON  CLAIM-
 ING  TO  BE  A SUCCESSOR IN INTEREST TO A DECEASED INDIVIDUAL'S RIGHT OF
 PUBLICITY HAS WRONGFULLY REGISTERED SUCH CLAIM.
   § 50-I. NO ABROGATION OF RIGHTS AND REMEDIES. NOTHING CONTAINED IN THE
 PROVISIONS OF THIS ARTICLE RELATED TO THE RIGHT OF  PUBLICITY  SHALL  BE
 DEEMED  TO  ABROGATE OR OTHERWISE LIMIT ANY RIGHTS OR REMEDIES OTHERWISE
 CONFERRED BY FEDERAL OR STATE LAW.
   § 4. Section 51 of the civil rights law, as amended by chapter 674  of
 the laws of 1995, is amended to read as follows:
   §  51.  Action  for injunction and for damages. 1. APPLICABILITY.  THE
 PROVISIONS OF THIS ARTICLE RELATED TO THE RIGHT OR PRIVACY AND THE RIGHT
 OF PUBLICITY APPLY TO AN ACT OR EVENT THAT OCCURS WITHIN NEW YORK.
   2. RIGHT OF PUBLICITY EXCEPTIONS. FOR PURPOSES OF THE RIGHT OF PUBLIC-
 ITY, CONSENT FOR USE  OF  ANOTHER  INDIVIDUAL'S  PERSONA  SHALL  NOT  BE
 REQUIRED, EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISIONS THREE AND FOUR OF
 THIS SECTION, WHEN USED IN CONNECTION WITH THE FOLLOWING:

 S. 5857--B                          5
 
   (A)  NEWS, PUBLIC AFFAIRS OR SPORTS BROADCAST, INCLUDING THE PROMOTION
 OF AND ADVERTISING FOR A PUBLIC AFFAIRS OR SPORTS BROADCAST, AN  ACCOUNT
 OF PUBLIC INTEREST OR A POLITICAL CAMPAIGN;
   (B) IN:
   (I)  A  PLAY,  BOOK,  MAGAZINE, NEWSPAPER, MUSICAL COMPOSITION, VISUAL
 WORK, WORK OF ART, AUDIOVISUAL WORK, RADIO OR TELEVISION PROGRAM  IF  IT
 IS  FICTIONAL  OR NONFICTIONAL ENTERTAINMENT, OR A DRAMATIC, LITERARY OR
 MUSICAL WORK;
   (II) A WORK OF POLITICAL, PUBLIC INTEREST OR NEWSWORTHY VALUE  INCLUD-
 ING A COMMENT, CRITICISM, PARODY, SATIRE OR A TRANSFORMATIVE CREATION OF
 A WORK OF AUTHORSHIP; OR
   (III) AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR ANY OF THE WORKS
 DESCRIBED IN PARAGRAPH (A) OF THIS SUBDIVISION OR THIS PARAGRAPH; OR
   (C)  FUNDRAISING  PURPOSES  BY  NOT-FOR-PROFIT  RADIO  AND  TELEVISION
 STATIONS LICENSED BY THE FEDERAL COMMUNICATIONS COMMISSION OF THE UNITED
 STATES, OR BY NOT-FOR-PROFIT ADVOCACY ORGANIZATIONS IF THE  USE  IS  FOR
 COMMENTARY OR CRITICISM;
   (D)  USE  OF THE RIGHT OF PUBLICITY OF A DECEASED INDIVIDUAL WHERE THE
 LICENSEE OR SUCCESSOR IN INTEREST HAS FAILED  TO  REGISTER  AND  POST  A
 CLAIM OF RIGHT UNDER SECTION FIFTY-H OF THIS ARTICLE, WITH THE EXCEPTION
 OF THE SAFE HARBOR PERIOD LISTED IN SUBDIVISION SEVEN OF SECTION FIFTY-H
 OF THIS ARTICLE, UNTIL SUCH TIME AS A CLAIM OF RIGHT HAS BEEN REGISTERED
 AND POSTED AS REQUIRED UNDER SUCH SECTION.
   (E)  NOTHING  IN THIS SECTION RELATING TO THE RIGHT OF PUBLICITY SHALL
 BE DEEMED TO ABROGATE OR OTHERWISE  LIMIT  OTHER  RIGHTS  OR  EXCEPTIONS
 OTHERWISE  CONFERRED BY STATE AND FEDERAL CASE LAW INTERPRETATIONS AS TO
 THE APPLICABILITY OF SECTIONS FIFTY AND FIFTY-ONE OF THIS  ARTICLE  MADE
 PRIOR  TO  THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND
 EIGHTEEN WHICH AMENDED THIS SECTION.
   3. DIGITAL REPLICA FOR PURPOSES OF TRADE IN AN  EXPRESSIVE  WORK.  (A)
 USE OF A DIGITAL REPLICA, AS DEFINED IN SUBDIVISION TWO OF SECTION FIFTY
 OF  THIS  ARTICLE, OF AN INDIVIDUAL SHALL CONSTITUTE A VIOLATION IF DONE
 WITHOUT THE CONSENT OF THE INDIVIDUAL IF THE USE IS:
   (I) IN A SCRIPTED AUDIOVISUAL OR AUDIO WORK, OR IN A LIVE  PERFORMANCE
 OF  A  DRAMATIC  WORK,  IN A MANNER THAT IS INTENDED TO CREATE, AND THAT
 DOES CREATE, THE CLEAR IMPRESSION THAT THE INDIVIDUAL REPRESENTED BY THE
 DIGITAL REPLICA IS PERFORMING, THE ACTIVITY  FOR  WHICH  HE  OR  SHE  IS
 KNOWN, IN THE ROLE OF A FICTIONAL CHARACTER; OR
   (II)  IN A PERFORMANCE OF A MUSICAL WORK, IN A MANNER THAT IS INTENDED
 TO CREATE, AND THAT DOES CREATE, THE CLEAR IMPRESSION THAT THE  INDIVID-
 UAL  REPRESENTED  BY THE DIGITAL REPLICA IS PERFORMING, THE ACTIVITY FOR
 WHICH HE OR SHE IS KNOWN, IN SUCH MUSICAL WORK; OR
   (III) IN AN AUDIOVISUAL WORK, IN A MANNER THAT IS INTENDED TO  CREATE,
 AND  THAT DOES CREATE, THE CLEAR IMPRESSION THAT THE ATHLETE REPRESENTED
 BY THE DIGITAL REPLICA IS ENGAGING IN AN ATHLETIC ACTIVITY FOR WHICH  HE
 OR SHE IS KNOWN.
   (B)  CONSENT  FOR  THE  USE OF THE DIGITAL REPLICA OF AN INDIVIDUAL AS
 PROVIDED IN THE PROVISIONS OF THIS ARTICLE SHALL NOT BE REQUIRED IF SUCH
 USE IS:
   (I) FOR PURPOSES OF PARODY, SATIRE, COMMENTARY, OR CRITICISM;
   (II IN A WORK OF POLITICAL, PUBLIC INTEREST, OR NEWSWORTHY  VALUE,  OR
 SIMILAR  WORK,  INCLUDING  A  DOCUMENTARY,  REGARDLESS  OF THE DEGREE OF
 FICTIONALIZATION IN THE WORK; OR
   (III) DE MINIMIS OR INCIDENTAL.
   4. DIGITAL REPLICA USE IN A PORNOGRAPHIC  WORK.    USE  OF  A  DIGITAL
 REPLICA  OF  AN  INDIVIDUAL SHALL CONSTITUTE A VIOLATION IF DONE WITHOUT

 S. 5857--B                          6
 
 THE CONSENT OF THE INDIVIDUAL IF THE USE IS  IN  AN  AUDIOVISUAL  PORNO-
 GRAPHIC WORK IN A MANNER THAT IS INTENDED TO CREATE AND THAT DOES CREATE
 THE IMPRESSION THAT THE INDIVIDUAL REPRESENTED BY THE DIGITAL REPLICA IS
 PERFORMING.    NOTHING  IN THIS SECTION SHALL LIMIT ANY OTHER RIGHTS THE
 INDIVIDUAL MAY HAVE AGAINST ANY  PARTY  RELATING  TO  SUCH  PORNOGRAPHIC
 WORK.
   5.  LIMITED  IMMUNITY.  THE OWNERS OR EMPLOYEES OF ANY MEDIUM USED FOR
 ADVERTISING INCLUDING, BUT NOT LIMITED TO, NEWSPAPERS, MAGAZINES,  RADIO
 AND  TELEVISION  NETWORKS  AND STATIONS, CABLE TELEVISION SYSTEMS, BILL-
 BOARDS, AND TRANSIT ADVERTISING, WHO MAKE UNAUTHORIZED USE OF  AN  INDI-
 VIDUAL'S  PERSONA  FOR  THE PURPOSE OF ADVERTISING OR TRADE SHALL NOT BE
 LIABLE FOR SUCH USE UNDER THE PROVISIONS OF THIS ARTICLE  UNLESS  IT  IS
 ESTABLISHED  THAT  SUCH OWNER OR EMPLOYEE HAD KNOWLEDGE OF THE UNAUTHOR-
 IZED USE, THROUGH PRESENCE OR INCLUSION, OF THE INDIVIDUAL'S PERSONA  IN
 SUCH ADVERTISEMENT OR PUBLICATION.
   6.  ACTION  FOR  INJUNCTION  AND  FOR DAMAGES. Any person whose [name,
 portrait, picture or voice] PERSONA is used within this state for adver-
 tising purposes [or], for the purposes  of  trade  without  the  written
 consent  first  obtained  as [above] provided [may] IN THE PROVISIONS OF
 THIS ARTICLE IS ENTITLED TO maintain an equitable action in the  supreme
 court  of  this state against the person[, firm or corporation] so using
 his [name, portrait, picture or voice] OR HER PERSONA,  to  prevent  and
 restrain  the  use thereof; and may also sue and recover damages for any
 injuries sustained INCLUDING AN AMOUNT EQUAL TO  THE  GREATER  OF  SEVEN
 HUNDRED  FIFTY DOLLARS OR COMPENSATORY DAMAGES by reason of such use and
 if  the  defendant  shall  have  knowingly  used  such  person's  [name,
 portrait,  picture  or  voice] PERSONA in such manner as is forbidden or
 declared to be unlawful by [section fifty] THE PROVISIONS of this  arti-
 cle  RELATING  TO  THE  RIGHT  OF PRIVACY OR THE RIGHT OF PUBLICITY, the
 [jury] FINDER OF FACT, in its discretion, may award  exemplary  damages.
 [But  nothing]  A VIOLATION OF AN INDIVIDUAL'S RIGHT OF PRIVACY OR RIGHT
 OF PUBLICITY MAY OCCUR WITHOUT REGARD TO WHETHER THE USE OR ACTIVITY  IS
 FOR PROFIT OR NOT-FOR-PROFIT.
   7.  NO  DEFENSE.  IT  SHALL  NOT CONSTITUTE A DEFENSE TO AN ACTION FOR
 VIOLATION OF AN INDIVIDUAL'S RIGHT OF PRIVACY OR RIGHT OF PUBLICITY THAT
 SUCH VIOLATION INCLUDES MORE THAN ONE INDIVIDUAL.
   8. USE AND TRANSFER.  NOTHING contained in this article  shall  be  so
 construed  as to prevent any [person, firm or corporation] INDIVIDUAL OR
 PERSON from selling or otherwise transferring  any  material  containing
 such  [name,  portrait,  picture or voice] PERSONA in whatever medium to
 any user of such [name, portrait, picture or voice] PERSONA, or  to  any
 third  party for sale or transfer directly or indirectly to such a user,
 for use in a manner lawful under this article[; nothing].
   9. PHOTOGRAPHERS. NOTHING  contained  in  this  article  shall  be  so
 construed  as  to  prevent any person[, firm or corporation,] practicing
 the profession of photography, from exhibiting [in or about his  or  its
 establishment]  OR  DISPLAYING,  INCLUDING  IN A GALLERY OR ON AN ONLINE
 PORTFOLIO specimens of the work of such [establishment, unless the  same
 is  continued  by  such person, firm or corporation after written notice
 objecting thereto has been given by the person portrayed;  and  nothing]
 PHOTOGRAPHER, OR FROM MAKING SPECIMENS OF THE WORK AVAILABLE FOR LICENS-
 ING  PURPOSES  IN SO FAR AS THE LICENSED USE DOES NOT VIOLATE THIS ARTI-
 CLE. A PHOTOGRAPHER SHALL NOT BE LIABLE IF THE USE OF THE PHOTOGRAPH WAS
 NOT AUTHORIZED BY THE PHOTOGRAPHER.
   10. MANUFACTURERS, WRITERS, COMPOSERS AND ARTISTS.  NOTHING  contained
 in this article shall be so construed as to prevent any person[, firm or

 S. 5857--B                          7

 corporation] from using the [name, portrait, picture or voice of] PERSO-
 NA  OWNED  BY  any  manufacturer or dealer in connection with the goods,
 wares and merchandise manufactured, produced or dealt in  by  [him]  THE
 MANUFACTURER  which  [he]  has BEEN sold or disposed of with such [name,
 portrait, picture or voice] PERSONA used  in  connection  therewith;  or
 from using the [name, portrait, picture or voice] PERSONA of any author,
 composer  or  artist  in connection with his OR HER literary, musical or
 artistic productions which he OR SHE has sold or disposed of  with  such
 [name, portrait, picture or voice] PERSONA used in connection therewith.
   11.  COPYRIGHT  OWNERS OF A SOUND RECORDING. Nothing contained in this
 section shall be construed to prohibit the copyright owner  of  a  sound
 recording from disposing of, dealing in, licensing or selling that sound
 recording  to any party, if the right to dispose of, deal in, license or
 sell such sound recording has been conferred by contract or other  writ-
 ten document by such living person or the holder of such right. [Nothing
 contained  in  the  foregoing  sentence  shall  be deemed to abrogate or
 otherwise limit any rights or remedies otherwise  conferred  by  federal
 law or state law.]
   12.  TERMINATION  OF  POST  MORTEM  RIGHT OF PUBLICITY. NOTHING IN THE
 PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY SHALL BE
 CONSTRUED AS PROHIBITING THE USE OF THE DECEASED INDIVIDUAL'S  RIGHT  OF
 PUBLICITY  THAT OCCURS AFTER THE EXPIRATION OF FORTY YEARS FOLLOWING HIS
 OR HER DEATH.   NOR SHALL ANYTHING IN THE  PROVISIONS  OF  THIS  ARTICLE
 PERTAINING  TO THE RIGHT OF PUBLICITY BE CONSTRUED AS CREATING LIABILITY
 OR GIVING RISE TO ANY REMEDY FOR ANY ACTIONS OR  CONDUCT  INVOLVING  THE
 USE OF A DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY THAT OCCURRED PRIOR TO
 THE  EFFECTIVE  DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND EIGHTEEN
 WHICH AMENDED THIS SECTION.
   13. STATUTE OF LIMITATIONS. ACTIONS BROUGHT UNDER  THE  PROVISIONS  OF
 THIS  ARTICLE  PERTAINING  TO  THE RIGHT OF PUBLICITY SHALL BE COMMENCED
 WITHIN ONE YEAR OF THE DATE OF DISCOVERY OF THE INJURY TO THE  PLAINTIFF
 OR  FROM  THE  DATE  THROUGH  THE  EXERCISE OF DUE DILIGENCE SUCH INJURY
 SHOULD HAVE BEEN DISCOVERED BY THE PLAINTIFF, WHICHEVER IS EARLIER.
   § 5. The section heading and subdivision 3 of section 215 of the civil
 practice law and rules are amended to read as follows:
   Actions to be commenced within one year: against sheriff,  coroner  or
 constable; for escape of prisoner; for assault, battery, false imprison-
 ment, malicious prosecution, libel or slander; for violation of right of
 privacy  OR  THE  RIGHT  OF PUBLICITY; for penalty given to informer; on
 arbitration award.
   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 OR THE RIGHT OF PUBLIC-
 ITY under [section fifty-one] ARTICLE FIVE of the civil rights law;
   § 6. Severability clause. If any clause, sentence, paragraph, subdivi-
 sion, 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, subdivision, section
 or part thereof directly involved in the controversy in which such judg-
 ment shall have been rendered. It is hereby declared to be the intent of
 the legislature that this act would  have  been  enacted  even  if  such
 invalid provisions had not been included herein.
   § 7. This act shall take effect on the one hundred eightieth day after
 it  shall  have  become a law, and shall apply to all living individuals
 and deceased individuals who died on or after such date.

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Senate Bill S5857B

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Sponsored By

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Bill Amendments

co-Sponsors

2017-S5857 - Details

2017-S5857 - Summary

2017-S5857 - Sponsor Memo

2017-S5857 - Bill Text download pdf

co-Sponsors

2017-S5857A - Details

2017-S5857A - Summary

2017-S5857A - Sponsor Memo

2017-S5857A - Bill Text download pdf

co-Sponsors

2017-S5857B (ACTIVE) - Details

2017-S5857B (ACTIVE) - Summary

2017-S5857B (ACTIVE) - Sponsor Memo

2017-S5857B (ACTIVE) - Bill Text download pdf

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