Assembly Actions - Lowercase Senate Actions - UPPERCASE |
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Nov 30, 2020 | signed chap.304 |
Nov 18, 2020 | delivered to governor |
Jul 23, 2020 | returned to senate passed assembly ordered to third reading cal.210 substituted for a5605c |
Jul 23, 2020 | substituted by s5959d |
Jul 20, 2020 | amended on third reading (t) 5605c |
Jan 08, 2020 | ordered to third reading cal.210 |
Jun 19, 2019 | ordered to third reading rules cal.592 rules report cal.592 reported |
Jun 18, 2019 | reported referred to rules reported referred to ways and means |
Jun 17, 2019 | reported referred to codes |
Jun 16, 2019 | print number 5605b |
Jun 16, 2019 | amend and recommit to judiciary |
Jun 06, 2019 | print number 5605a |
Jun 06, 2019 | amend (t) and recommit to judiciary |
Feb 14, 2019 | referred to judiciary |
assembly Bill A5605C
Signed By Governor2019-2020 Legislative Session
Establishes the right of publicity and provides for a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual
Sponsored By
WEINSTEIN
Archive: Last Bill Status Via S5959 - Signed by Governor
- Introduced
- In Committee
- On Floor Calendar
- Passed Senate
- Passed Assembly
- Delivered to Governor
- Signed by Governor
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Votes
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Jul 22, 2020 - floor Vote
S5959D600floor60Aye0Nay0Absent0Excused0Abstained-
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Floor Vote: Jul 22, 2020
aye (60)- Addabbo
- Akshar
- Amedore
- Bailey
- Benjamin
- Biaggi
- Borrello
- Boyle
- Breslin
- Brooks
- Carlucci
- Comrie
- Felder
- Funke
- Gallivan
- Gaughran
- Gianaris
- Gounardes
- Griffo
- Harckham
- Helming
- Hoylman-Sigal
- Jackson
- Jordan
- Kaminsky
- Kaplan
- Kavanagh
- Kennedy
- Krueger
- Lanza
- LaValle
- Little
- Liu
- Martinez
- May
- Mayer
- Metzger
- Montgomery
- Myrie
- O'Mara
- Ortt
- Parker
- Persaud
- Ramos
- Ranzenhofer
- Ritchie
- Rivera
- Robach
- Salazar
- Sanders
- Savino
- Sepúlveda
- Serino
- Serrano
- Seward
- Skoufis
- Stavisky
- Stewart-Cousins
- Tedisco
- Thomas
Jul 21, 2020 - Finance committee Vote
S5959D220committee22Aye0Nay1Aye with Reservations0Absent0Excused0AbstainedJul 21, 2020 - Rules committee Vote
S5959D190committee19Aye0Nay0Aye with Reservations0Absent0Excused0AbstainedMar 10, 2020 - Judiciary committee Vote
S5959C110committee11Aye0Nay3Aye with Reservations0Absent1Excused0Abstained -
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Co-Sponsors
Jeffrey Dinowitz
Aileen Gunther
Steven Englebright
David Weprin
- view additional co-sponsors
Carmen E. Arroyo
Catherine Nolan
Multi-Sponsors
Edward Braunstein
Anthony D'Urso
Patricia Fahy
Andrew Hevesi
- view additional multi-sponsors
Ellen C. Jaffee
Albert A. Stirpe
Al Taylor
A5605 - Details
A5605 - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 5605 2019-2020 Regular Sessions I N A S S E M B L Y February 14, 2019 ___________ Introduced by M. of A. WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, D'URSO, FAHY, HEVESI, JAFFEE, STIRPE, TAYLOR -- read once and referred to the Committee on Judiciary 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. 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- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD05914-02-9 A. 5605 2 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- ITY ARE FREELY TRANSFERABLE AND DESCENDIBLE, IN WHOLE OR IN PART, BY THE FOLLOWING: (A) CONTRACT; (B) LICENSE; A. 5605 3 (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. 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 A. 5605 4 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 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: (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 A. 5605 5 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 NINETEEN 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 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. A. 5605 6 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 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, A. 5605 7 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 NINETEEN 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.
Co-Sponsors
Jeffrey Dinowitz
Aileen Gunther
Steven Englebright
David Weprin
- view additional co-sponsors
Carmen E. Arroyo
Catherine Nolan
Michael DenDekker
Multi-Sponsors
Edward Braunstein
Anthony D'Urso
Patricia Fahy
Andrew Hevesi
- view additional multi-sponsors
Ellen C. Jaffee
Albert A. Stirpe
Al Taylor
A5605A - Details
A5605A - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 5605--A 2019-2020 Regular Sessions I N A S S E M B L Y February 14, 2019 ___________ Introduced by M. of A. WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT, WEPRIN, ARROYO, NOLAN -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, D'URSO, FAHY, HEVESI, JAFFEE, STIRPE, TAYLOR -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the civil rights law and the arts and cultural affairs law, in relation to the right of privacy 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. "AUTHORIZED REPRESENTATIVE" MEANS AN ATTORNEY, TALENT AGENT, OR PERSONAL MANAGER AUTHORIZED TO REPRESENT THE INDIVIDUAL, OR IF THE INDI- VIDUAL DOES NOT HAVE AN ATTORNEY, TALENT AGENT, OR PERSONAL MANAGER, A LABOR UNION REPRESENTING PERFORMERS IN AUDIOVISUAL WORK. 2. "DECEASED INDIVIDUAL" MEANS A NATURAL PERSON WHO HAS DIED WHILE DOMICILED IN THE STATE OF NEW YORK. 3. "DIGITAL REPLICA" MEANS A COMPUTER-GENERATED OR ELECTRONIC REPROD- UCTION OF A LIVING OR DECEASED INDIVIDUAL'S LIKENESS OR VOICE THAT DEPICTS THE LIKENESS OR VOICE OF THE INDIVIDUAL BEING PORTRAYED. A DIGITAL REPLICA IS INCLUDED WITHIN AN INDIVIDUAL'S PORTRAIT. 4. "SECRETARY" MEANS THE SECRETARY OF STATE. 5. "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. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD05914-04-9 A. 5605--A 2 6. "EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK" INCLUDES AN AUDIO- BOOK, INTERACTIVE GAME, LIVE PERFORMANCE, MOVIE, RADIO OR TELEVISION PROGRAM, SONG, OR LIKE MEDIA IF IT IS FICTIONAL, NONFICTIONAL, OR MUSICAL ENTERTAINMENT. 7. "INDIVIDUAL" MEANS A NATURAL PERSON. 8. "NAME" MEANS THE ACTUAL OR ASSUMED NAME, OR NICKNAME, OF A LIVING OR DECEASED INDIVIDUAL THAT IDENTIFIES THAT INDIVIDUAL. 9. "NUDE" MEANS THE REALISTIC DISPLAY OF GENITALS, PUBIC AREA, ANUS, A FEMALE'S POST-PUBESCENT NIPPLE OR AREOLA, INCLUDING THE USE OF TECHNOLO- GY TO DEPICT THE BODY PARTS OF ANOTHER AS BEING THOSE OF THE INDIVIDUAL OR TO IMPOSE NUDE BODY PARTS ONTO THE INDIVIDUAL. 10. "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. 11. "PERSONA" MEANS, INDIVIDUALLY OR COLLECTIVELY, THE NAME, PORTRAIT OR PICTURE, VOICE, OR SIGNATURE OF AN INDIVIDUAL. 12. "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 AND THE MENTAL, EMOTIONAL, OR REPUTATIONAL INJURIES SUSTAINED, EXTINGUISHED UPON DEATH. 13. "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 AND THE PECUNIARY LOSS SUSTAINED. 14. "SEXUAL ACTS" MEANS MASTURBATION, SEXUAL INTERCOURSE, ORAL OR ANAL SEXUAL CONDUCT, PENETRATION OF, OR WITH, AN OBJECT, BESTIALITY, OR TRANSFER OF SEMEN ONTO THE INDIVIDUAL. 15. "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. 16. "VISUAL WORK" INCLUDES: A. A VISUAL RENDITION INCLUDING, BUT NOT LIMITED TO, A PAINTING, DRAW- ING, VIDEO, SCULPTURE, MOSAIC, OR PHOTOGRAPH; OR B. A WORK OF CALLIGRAPHY; OR C. A WORK OF GRAPHIC ART INCLUDING, BUT NOT LIMITED TO, AN ETCHING, LITHOGRAPH, SERIGRAPH, OR OFFSET PRINT; OR D. A CRAFT WORK IN MATERIALS INCLUDING, BUT NOT LIMITED TO, A COLLAGE, ASSEMBLAGE, OR WORK CONSISTING OF ANY COMBINATION OF PARAGRAPHS A, B AND C OF THIS SUBDIVISION. § 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. A CONTRACT TO CREATE A SEXUALLY EXPLICIT DIGITAL DEPICTION, AS DEFINED BY SUBDIVISION FOUR OF SECTION FIFTY-ONE A. 5605--A 3 OF THIS ARTICLE MUST INCLUDE A GENERAL DESCRIPTION OF THE DEPICTION AND THE EXPRESSIVE AUDIOVISUAL WORK IN WHICH IT WILL BE INCORPORATED. AN INDIVIDUAL HAS TWO BUSINESS DAYS TO REVOKE WRITTEN CONSENT FOR A SEXUAL- LY EXPLICIT DIGITAL DEPICTION UNLESS: (A) THE INDIVIDUAL WAS GIVEN NO LESS THAN FORTY-EIGHT HOURS TO REVIEW THE TERMS OF CONSENT PRIOR TO SIGNING IT; OR (B) THE INDIVIDUAL'S AUTHORIZED REPRESENTATIVE PROVIDED WRITTEN APPROVAL OF THE TERMS OF CONSENT. THE WRITTEN NOTICE OF REVOCATION SHALL BE SENT TO THE PERSON IN PERSON OR BY SENDING A REVOCATION BY MAIL, COURIER, ELECTRONIC TRANSMISSION OR FACSIMILE TO THE PERSON'S LAST KNOWN ADDRESS. 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- 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 A. 5605--A 4 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. UPON THE FIRST ANNIVERSARY OF THE DECEASED INDIVIDUAL'S DEATH, ANY PERSON CLAIMING TO BE A SUCCESSOR IN INTEREST WHO POSSESSES AT LEAST FIFTY-ONE PERCENT INTEREST IN THE RIGHT OF PUBLICITY OF A DECEASED INDI- VIDUAL 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. A RIGHTS HOLDER MAY VOLUNTARILY REGISTER THE CLAIM AT ANY TIME PRIOR TO THE ONE-YEAR ANNIVERSARY OF THE DECEASED INDIVIDUAL'S DEATH. THE FORM SHALL INCLUDE THE NAME AND DATE OF DEATH OF THE DECEASED INDI- VIDUAL, 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 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. 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 THAT OCCURS ONE YEAR AFTER THE ANNIVERSARY OF A DECEASED INDIVIDUAL'S DEATH UNLESS THE CLAIM IS REGISTERED. 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 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- A. 5605--A 5 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. EXCEPTIONS. CONSENT FOR USE OF ANOTHER INDIVIDUAL'S PERSONA SHALL NOT BE REQUIRED, EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISIONS THREE AND FOUR OF THIS SECTION AS IT RELATES TO DIGITAL REPLICAS, 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; (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, UNTIL SUCH TIME AS A CLAIM OF RIGHT HAS BEEN REGISTERED AND POSTED AS REQUIRED UNDER SUCH SECTION. A. 5605--A 6 (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 THIS SECTION AND SECTION FIFTY OF THIS ARTICLE MADE PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINETEEN 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 THREE 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 AN EXPRESSIVE AUDIOVISUAL OR AUDIO WORK OR SOUND RECORDING, OR IN A LIVE PERFORMANCE OF A DRAMATIC WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL ACTOR REPRESENTED BY THE DIGITAL REPLICA IS PERFORMING, THE ACTIVITY FOR WHICH HE OR SHE IS KNOWN, IN THE ROLE OF A FICTIONAL CHAR- ACTER; OR (II) IN AN EXPRESSIVE AUDIOVISUAL OR SOUND RECORDING, OR IN A LIVE PERFORMANCE OF A MUSICAL WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL SINGER, DANCER, OR MUSICIAN REPRESENTED BY THE DIGITAL REPLICA IS PERFORMING, THE ACTIVITY FOR WHICH HE OR SHE IS KNOWN, IN SUCH MUSICAL WORK; OR (III) IN AN EXPRESSIVE AUDIOVISUAL WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL OR COLLEGE 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. (A) USE OF A DIGITAL REPLICA TO CREATE SEXUALLY EXPLICIT MATERIAL IN AN EXPRESSIVE AUDIOVIS- UAL WORK SHALL CONSTITUTE A VIOLATION OF THE RIGHT OF PRIVACY IF THE USE IS INTENDED TO DEPICT AND DOES FALSELY DEPICT AN INDIVIDUAL AS PERFORM- ING IN THE NUDE OR AS ENGAGING IN SEXUAL ACTS THEY DID NOT PERFORM. (B) CONSENT SHALL NOT BE REQUIRED IF SUCH USE IS: (I) IN RELATION TO A MATTER OF LEGITIMATE PUBLIC PURPOSE; OR (II) IN A WORK OF POLITICAL OR NEWSWORTHY VALUE, OR SIMILAR WORK; OR (III) FOR PURPOSES OF COMMENTARY OR CRITICISM. 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. ACTIONS 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 A. 5605--A 7 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 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, 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]. 9. VISUAL WORK. NOTHING CONTAINED IN THIS ARTICLE SHALL BE SO CONSTRUED AS TO PREVENT ANY PERSON FROM EXHIBITING OR DISPLAYING VISUAL WORK, INCLUDING IN A GALLERY OR ON AN ONLINE PORTFOLIO SPECIMENS OF THE WORK OR FROM MAKING THE VISUAL WORK AVAILABLE FOR LICENSING PURPOSES IN SO FAR AS THE TERMS OF THE SALE OR LICENSE DOES NOT PERMIT THE USER TO VIOLATE THIS ARTICLE. 10. 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] 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.] A. 5605--A 8 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 NINETEEN 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. Subdivision 1 of section 35.03 of the arts and cultural affairs law, paragraph (a) as amended by chapter 411 of the laws of 2013, is amended to read as follows: 1. A contract made by an infant or made by a parent or guardian of an infant, or a contract proposed to be so made, under which (a) the infant is to perform or render services as an actor, actress, model, dancer, musician, vocalist or other performing artist, or as a participant or player in professional sports, [or] (b) a person is employed to render services to the infant in connection with such services of the infant or in connection with contracts therefor, OR (C) THE INFANT IS BOUND TO AN EXCLUSIVE LICENSING CONTRACT BEYOND TWENTY-ONE MONTHS FOR USE OF THEIR PERSONA FOR ADVERTISING PURPOSES OR PURPOSES OF TRADE, AS DEFINED BY THE CIVIL RIGHTS LAW, may be approved by the supreme court or the surro- gate's court as provided in this section where the infant is a resident of this state or the services of the infant are to be performed or rendered in this state. If the contract is so approved the infant may not, either during his minority or upon reaching his majority, disaffirm the contract on the ground of infancy or assert that the parent or guar- dian lacked authority to make the contract. A contract modified, amended or assigned after its approval under this section shall be deemed a new contract. § 7. 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. A. 5605--A 9 § 8. 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.
Co-Sponsors
Jeffrey Dinowitz
Aileen Gunther
Steven Englebright
David Weprin
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Carmen E. Arroyo
Catherine Nolan
Michael DenDekker
Linda Rosenthal
Richard Gottfried
Multi-Sponsors
Edward Braunstein
Anthony D'Urso
Patricia Fahy
Andrew Hevesi
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Ellen C. Jaffee
Albert A. Stirpe
Al Taylor
A5605B - Details
A5605B - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 5605--B 2019-2020 Regular Sessions I N A S S E M B L Y February 14, 2019 ___________ Introduced by M. of A. WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT, WEPRIN, ARROYO, NOLAN, DenDEKKER -- Multi-Sponsored by -- M. of A. BRAUNSTEIN, D'URSO, FAHY, HEVESI, JAFFEE, STIRPE, TAYLOR -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the civil rights law and the arts and cultural affairs law, in relation to the right of privacy 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. "AUTHORIZED REPRESENTATIVE" MEANS AN ATTORNEY, TALENT AGENT, OR PERSONAL MANAGER AUTHORIZED TO REPRESENT THE INDIVIDUAL, OR IF THE INDI- VIDUAL DOES NOT HAVE AN ATTORNEY, TALENT AGENT, OR PERSONAL MANAGER, A LABOR UNION REPRESENTING PERFORMERS IN AUDIOVISUAL WORK. 2. "DECEASED INDIVIDUAL" MEANS A NATURAL PERSON WHO HAS DIED WHILE DOMICILED IN THE STATE OF NEW YORK. 3. "DIGITAL REPLICA" MEANS A NEWLY CREATED, ORIGINAL COMPUTER-GENERAT- ED OR ELECTRONIC PERFORMANCE OF A LIVING OR DECEASED INDIVIDUAL'S LIKE- NESS OR VOICE IN A SEPARATE AND NEWLY CREATED, ORIGINAL EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK THAT DEPICTS THE LIKENESS OR VOICE OF THE INDIVIDUAL BEING PORTRAYED. A DIGITAL REPLICA IS INCLUDED WITHIN AN INDIVIDUAL'S PORTRAIT. A DIGITAL REPLICA DOES NOT INCLUDE THE ELEC- EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted.
LBD05914-06-9 A. 5605--B 2 TRONIC REPRODUCTION, COMPUTER GENERATED OR OTHER DIGITAL RE-MASTERING OF AN EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK OF A PERSON'S ORIGINAL OR RECORDED PERFORMANCE. 4. "SECRETARY" MEANS THE SECRETARY OF STATE. 5. "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. 6. "EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK" INCLUDES AN AUDIO- BOOK, INTERACTIVE GAME, LIVE PERFORMANCE, MOVIE, RADIO OR TELEVISION PROGRAM, SONG, OR LIKE MEDIA IF IT IS FICTIONAL, NONFICTIONAL, OR MUSICAL ENTERTAINMENT. 7. "INDIVIDUAL" MEANS A NATURAL PERSON. 8. "NAME" MEANS THE ACTUAL OR ASSUMED NAME, OR NICKNAME, OF A LIVING OR DECEASED INDIVIDUAL THAT IDENTIFIES THAT INDIVIDUAL. 9. "NUDE" MEANS THE REALISTIC DISPLAY OF GENITALS, PUBIC AREA, ANUS, A FEMALE'S POST-PUBESCENT NIPPLE OR AREOLA, INCLUDING THE USE OF TECHNOLO- GY TO DEPICT THE BODY PARTS OF ANOTHER AS BEING THOSE OF THE INDIVIDUAL OR TO IMPOSE NUDE BODY PARTS ONTO THE INDIVIDUAL. 10. "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. 11. "PERSONA" MEANS, INDIVIDUALLY OR COLLECTIVELY, THE NAME, PORTRAIT OR PICTURE, VOICE, OR SIGNATURE OF AN INDIVIDUAL. 12. "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 AND THE MENTAL, EMOTIONAL, OR REPUTATIONAL INJURIES SUSTAINED, EXTINGUISHED UPON DEATH. 13. "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 AND THE PECUNIARY LOSS SUSTAINED. 14. "SEXUAL ACTS" MEANS MASTURBATION, SEXUAL INTERCOURSE, ORAL OR ANAL SEXUAL CONDUCT, PENETRATION OF, OR WITH, AN OBJECT, BESTIALITY, OR TRANSFER OF SEMEN ONTO THE INDIVIDUAL. 15. "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. 16. "VISUAL WORK" INCLUDES: A. A VISUAL RENDITION INCLUDING, BUT NOT LIMITED TO, A PAINTING, DRAW- ING, VIDEO, SCULPTURE, MOSAIC, OR PHOTOGRAPH; OR B. A WORK OF CALLIGRAPHY; OR C. A WORK OF GRAPHIC ART INCLUDING, BUT NOT LIMITED TO, AN ETCHING, LITHOGRAPH, SERIGRAPH, OR OFFSET PRINT; OR D. A CRAFT WORK IN MATERIALS INCLUDING, BUT NOT LIMITED TO, A COLLAGE, ASSEMBLAGE, OR WORK CONSISTING OF ANY COMBINATION OF PARAGRAPHS A, B AND C OF THIS SUBDIVISION. § 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 A. 5605--B 3 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. A CONTRACT TO CREATE A SEXUALLY EXPLICIT DIGITAL DEPICTION, AS DEFINED BY SUBDIVISION FOUR OF SECTION FIFTY-ONE OF THIS ARTICLE MUST INCLUDE A GENERAL DESCRIPTION OF THE DEPICTION AND THE EXPRESSIVE AUDIOVISUAL WORK IN WHICH IT WILL BE INCORPORATED. AN INDIVIDUAL HAS TWO BUSINESS DAYS TO REVOKE WRITTEN CONSENT FOR A SEXUAL- LY EXPLICIT DIGITAL DEPICTION UNLESS: (A) THE INDIVIDUAL WAS GIVEN NO LESS THAN FORTY-EIGHT HOURS TO REVIEW THE TERMS OF CONSENT PRIOR TO SIGNING IT; OR (B) THE INDIVIDUAL'S AUTHORIZED REPRESENTATIVE PROVIDED WRITTEN APPROVAL OF THE TERMS OF CONSENT. THE WRITTEN NOTICE OF REVOCATION SHALL BE SENT TO THE PERSON IN PERSON OR BY SENDING A REVOCATION BY MAIL, COURIER, ELECTRONIC TRANSMISSION OR FACSIMILE TO THE PERSON'S LAST KNOWN ADDRESS. 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- 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 A. 5605--B 4 (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. UPON THE FIRST ANNIVERSARY OF THE DECEASED INDIVIDUAL'S DEATH, ANY PERSON CLAIMING TO BE A SUCCESSOR IN INTEREST WHO POSSESSES AT LEAST FIFTY-ONE PERCENT INTEREST IN THE RIGHT OF PUBLICITY OF A DECEASED INDI- VIDUAL 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. A RIGHTS HOLDER MAY VOLUNTARILY REGISTER THE CLAIM AT ANY TIME PRIOR TO THE ONE-YEAR ANNIVERSARY OF THE DECEASED INDIVIDUAL'S DEATH. THE FORM SHALL INCLUDE THE NAME AND DATE OF DEATH OF THE DECEASED INDI- VIDUAL, 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 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. 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 THAT OCCURS ONE YEAR AFTER THE ANNIVERSARY OF A DECEASED INDIVIDUAL'S DEATH UNLESS THE CLAIM IS REGISTERED. HOWEVER, AN ACTION MAY BE BROUGHT UNDER THE PROVISIONS OF THIS ARTICLE PERTAINING TO THE RIGHT OF PUBLICITY FOR A VIOLATION OF A A. 5605--B 5 DECEASED INDIVIDUAL'S RIGHT OF PUBLICITY 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. EXCEPTIONS. CONSENT FOR USE OF ANOTHER INDIVIDUAL'S PERSONA SHALL NOT BE REQUIRED, EXCEPT AS OTHERWISE PROVIDED IN SUBDIVISIONS THREE AND FOUR OF THIS SECTION AS IT RELATES TO DIGITAL REPLICAS, 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; (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 EXEMPTED UNDER THIS ARTICLE; OR (C) FUNDRAISING PURPOSES BY NOT-FOR-PROFIT RADIO AND TELEVISION STATIONS LICENSED BY THE FEDERAL COMMUNICATIONS COMMISSION OF THE UNITED A. 5605--B 6 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, 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 THIS SECTION AND SECTION FIFTY OF THIS ARTICLE MADE PRIOR TO THE EFFECTIVE DATE OF THE CHAPTER OF THE LAWS OF TWO THOUSAND NINETEEN 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 THREE 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 AN EXPRESSIVE AUDIOVISUAL OR AUDIO WORK OR SOUND RECORDING, OR IN A LIVE PERFORMANCE OF A DRAMATIC WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL ACTOR REPRESENTED BY THE DIGITAL REPLICA IS PERFORMING, THE ACTIVITY FOR WHICH HE OR SHE IS KNOWN, IN THE ROLE OF A FICTIONAL CHAR- ACTER; OR (II) IN AN EXPRESSIVE AUDIOVISUAL OR SOUND RECORDING, OR IN A LIVE PERFORMANCE OF A MUSICAL WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL SINGER, DANCER, OR MUSICIAN REPRESENTED BY THE DIGITAL REPLICA IS PERFORMING, THE ACTIVITY FOR WHICH HE OR SHE IS KNOWN, IN SUCH MUSICAL WORK; OR (III) IN AN EXPRESSIVE AUDIOVISUAL WORK, IN A MANNER THAT IS INTENDED TO CREATE, AND THAT DOES CREATE, THE REASONABLE IMPRESSION THAT THE PROFESSIONAL OR COLLEGE 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; (III) DE MINIMIS OR INCIDENTAL; OR (IV) THE BROADCASTING OR STREAMING OF A SOUND RECORDING OR AUDIOVISUAL WORK THAT IS AN ELECTRONIC REPRODUCTION, COMPUTER GENERATED OR OTHER DIGITAL RE-MASTERING OF A PERSON'S ORIGINAL OR RECORDED PERFORMANCE. 4. DIGITAL REPLICA USE IN A PORNOGRAPHIC WORK. (A) USE OF A DIGITAL REPLICA TO CREATE SEXUALLY EXPLICIT MATERIAL IN AN EXPRESSIVE AUDIOVIS- UAL WORK SHALL CONSTITUTE A VIOLATION OF THE RIGHT OF PRIVACY IF THE USE IS INTENDED TO DEPICT AND DOES FALSELY DEPICT AN INDIVIDUAL AS PERFORM- ING IN THE NUDE OR AS ENGAGING IN SEXUAL ACTS THEY DID NOT PERFORM. (B) CONSENT SHALL NOT BE REQUIRED IF SUCH USE IS: (I) IN RELATION TO A MATTER OF LEGITIMATE PUBLIC PURPOSE; OR (II) IN A WORK OF POLITICAL OR NEWSWORTHY VALUE, OR SIMILAR WORK; OR (III) FOR PURPOSES OF COMMENTARY OR CRITICISM. 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- A. 5605--B 7 BOARDS, AND TRANSIT ADVERTISING, WHO MAKE UNAUTHORIZED USE OF AN INDI- VIDUAL'S PERSONA OR DIGITAL REPLICA 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 ACTUAL KNOWLEDGE BY PRIOR NOTIFICATION OF THE UNAUTHORIZED USE, THROUGH PRES- ENCE OR INCLUSION, OF THE INDIVIDUAL'S PERSONA IN SUCH ADVERTISEMENT OR PUBLICATION. 6. ACTIONS 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 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, 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]. 9. VISUAL WORK. NOTHING CONTAINED IN THIS ARTICLE SHALL BE SO CONSTRUED AS TO PREVENT ANY PERSON FROM EXHIBITING OR DISPLAYING VISUAL WORK, INCLUDING IN A GALLERY OR ON AN ONLINE PORTFOLIO SPECIMENS OF THE WORK OR FROM MAKING THE VISUAL WORK AVAILABLE FOR LICENSING PURPOSES IN SO FAR AS THE TERMS OF THE SALE OR LICENSE DOES NOT PERMIT THE USER TO VIOLATE THIS ARTICLE. 10. 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] 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 A. 5605--B 8 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 NINETEEN 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. Subdivision 1 of section 35.03 of the arts and cultural affairs law, paragraph (a) as amended by chapter 411 of the laws of 2013, is amended to read as follows: 1. A contract made by an infant or made by a parent or guardian of an infant, or a contract proposed to be so made, under which (a) the infant is to perform or render services as an actor, actress, model, dancer, musician, vocalist or other performing artist, or as a participant or player in professional sports, [or] (b) a person is employed to render services to the infant in connection with such services of the infant or in connection with contracts therefor, OR (C) THE INFANT IS BOUND TO AN EXCLUSIVE LICENSING CONTRACT BEYOND TWENTY-ONE MONTHS FOR USE OF THEIR PERSONA FOR ADVERTISING PURPOSES OR PURPOSES OF TRADE, AS DEFINED BY THE CIVIL RIGHTS LAW, may be approved by the supreme court or the surro- gate's court as provided in this section where the infant is a resident of this state or the services of the infant are to be performed or rendered in this state. If the contract is so approved the infant may not, either during his minority or upon reaching his majority, disaffirm the contract on the ground of infancy or assert that the parent or guar- dian lacked authority to make the contract. A contract modified, amended A. 5605--B 9 or assigned after its approval under this section shall be deemed a new contract. § 7. 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. § 8. 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.
Co-Sponsors
Jeffrey Dinowitz
Aileen Gunther
Steven Englebright
David Weprin
- view additional co-sponsors
Carmen E. Arroyo
Catherine Nolan
Michael DenDekker
Linda Rosenthal
Richard Gottfried
Nathalia Fernandez
Multi-Sponsors
Edward Braunstein
Anthony D'Urso
Patricia Fahy
Andrew Hevesi
- view additional multi-sponsors
Ellen C. Jaffee
Albert A. Stirpe
Al Taylor
A5605C (ACTIVE) - Details
A5605C (ACTIVE) - Bill Text download pdf
S T A T E O F N E W Y O R K ________________________________________________________________________ 5605--C 2019-2020 Regular Sessions I N A S S E M B L Y February 14, 2019 ___________ Introduced by M. of A. WEINSTEIN, DINOWITZ, GUNTHER, ENGLEBRIGHT, WEPRIN, ARROYO, NOLAN, DenDEKKER, L. ROSENTHAL, GOTTFRIED -- Multi- Sponsored by -- M. of A. BRAUNSTEIN, D'URSO, FAHY, HEVESI, JAFFEE, STIRPE, TAYLOR -- read once and referred to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- ordered to a third reading, amended and ordered reprinted, retaining its place on the order of third reading AN ACT to amend the civil rights law, in relation to establishing the right of publicity and to providing a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual 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 section 50-f to read as follows: § 50-F. RIGHT OF PUBLICITY. 1. FOR PURPOSES OF THIS SECTION: A. "DECEASED PERFORMER" MEANS A DECEASED NATURAL PERSON DOMICILED IN THIS STATE AT THE TIME OF DEATH WHO, FOR GAIN OR LIVELIHOOD, WAS REGU- LARLY ENGAGED IN ACTING, SINGING, DANCING, OR PLAYING A MUSICAL INSTRU- MENT. B. "DECEASED PERSONALITY" MEANS ANY DECEASED NATURAL PERSON DOMICILED IN THIS STATE AT THE TIME OF DEATH WHOSE NAME, VOICE, SIGNATURE, PHOTO- GRAPH, OR LIKENESS HAS COMMERCIAL VALUE AT THE TIME OF HIS OR HER DEATH, OR BECAUSE OF HIS OR HER DEATH, WHETHER OR NOT DURING THE LIFETIME OF THAT NATURAL PERSON THE PERSON USED HIS OR HER NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS ON OR IN PRODUCTS, MERCHANDISE, OR GOODS, OR FOR PURPOSES OF ADVERTISING OR SELLING, OR SOLICITATION OF PURCHASE OF, PRODUCTS, MERCHANDISE, GOODS, OR SERVICES. EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD05914-20-0
A. 5605--C 2 C. "DIGITAL REPLICA" MEANS A NEWLY CREATED, ORIGINAL, COMPUTER-GENER- ATED, ELECTRONIC PERFORMANCE BY AN INDIVIDUAL IN A SEPARATE AND NEWLY CREATED, ORIGINAL EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK IN WHICH THE INDIVIDUAL DID NOT ACTUALLY PERFORM, THAT IS SO REALISTIC THAT A REASONABLE OBSERVER WOULD BELIEVE IT IS A PERFORMANCE BY THE INDIVID- UAL BEING PORTRAYED AND NO OTHER INDIVIDUAL. A DIGITAL REPLICA DOES NOT INCLUDE THE ELECTRONIC REPRODUCTION, COMPUTER GENERATED OR OTHER DIGITAL REMASTERING OF AN EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK CONSISTING OF AN INDIVIDUAL'S ORIGINAL OR RECORDED PERFORMANCE, NOR THE MAKING OR DUPLICATION OF ANOTHER RECORDING THAT CONSISTS ENTIRELY OF THE INDEPENDENT FIXATION OF OTHER SOUNDS, EVEN IF SUCH SOUNDS IMITATE OR SIMULATE THE VOICE OF THE INDIVIDUAL. D. "SOUND RECORDINGS" ARE WORKS THAT RESULT FROM THE FIXATION OF A SERIES OF MUSICAL, SPOKEN, OR OTHER SOUNDS, BUT NOT INCLUDING THE SOUNDS ACCOMPANYING A MOTION PICTURE OR OTHER AUDIOVISUAL WORK, REGARDLESS OF THE NATURE OF THE MATERIAL OBJECTS, SUCH AS DISKS, TAPES, OR OTHER PHONORECORDS, IN WHICH THEY ARE EMBODIED. 2. A. ANY PERSON WHO USES A DECEASED PERSONALITY'S NAME, VOICE, SIGNA- TURE, PHOTOGRAPH, OR LIKENESS, IN ANY MANNER, ON OR IN PRODUCTS, MERCHANDISE, OR GOODS, OR FOR PURPOSES OF ADVERTISING OR SELLING, OR SOLICITING PURCHASES OF, PRODUCTS, MERCHANDISE, GOODS, OR SERVICES, WITHOUT PRIOR CONSENT FROM THE PERSON OR PERSONS SPECIFIED IN SUBDIVI- SION FOUR OF THIS SECTION, SHALL BE LIABLE FOR ANY DAMAGES SUSTAINED BY THE PERSON OR PERSONS INJURED AS A RESULT THEREOF. B. ANY PERSON WHO USES A DECEASED PERFORMER'S DIGITAL REPLICA IN A SCRIPTED AUDIOVISUAL WORK AS A FICTIONAL CHARACTER OR FOR THE LIVE PERFORMANCE OF A MUSICAL WORK SHALL BE LIABLE FOR ANY DAMAGES SUSTAINED BY THE PERSON OR PERSONS INJURED AS A RESULT THEREOF IF THE USE OCCURS WITHOUT PRIOR CONSENT FROM THE PERSON OR PERSONS IN SUBDIVISION FOUR OF THIS SECTION, IF THE USE IS LIKELY TO DECEIVE THE PUBLIC INTO THINKING IT WAS AUTHORIZED BY THE PERSON OR PERSONS SPECIFIED IN SUBDIVISION FOUR OF THIS SECTION. A USE SHALL NOT BE CONSIDERED LIKELY TO DECEIVE THE PUBLIC INTO THINKING IT WAS AUTHORIZED BY THE PERSON OR PERSONS SPECI- FIED IN SUBDIVISION FOUR OF THIS SECTION IF THE PERSON MAKING SUCH USE PROVIDES A CONSPICUOUS DISCLAIMER IN THE CREDITS OF THE SCRIPTED AUDI- OVISUAL WORK, AND IN ANY RELATED ADVERTISEMENT IN WHICH THE DIGITAL REPLICA APPEARS, STATING THAT THE USE OF THE DIGITAL REPLICA HAS NOT BEEN AUTHORIZED BY THE PERSON OR PERSONS SPECIFIED IN SUBDIVISION FOUR OF THIS SECTION. C. IN ANY ACTION BROUGHT UNDER THIS SECTION: I. THE PERSON WHO VIOLATED THE SECTION SHALL BE LIABLE TO THE INJURED PARTY OR PARTIES IN AN AMOUNT EQUAL TO THE GREATER OF TWO THOUSAND DOLLARS OR THE COMPENSATORY DAMAGES SUFFERED BY THE INJURED PARTY OR PARTIES, AS A RESULT OF THE UNAUTHORIZED USE, AND ANY PROFITS FROM THE UNAUTHORIZED USE THAT ARE ATTRIBUTABLE TO SUCH USE AND ARE NOT TAKEN INTO ACCOUNT IN COMPUTING THE COMPENSATORY DAMAGES. II. IN ESTABLISHING PROFITS UNDER THIS SUBDIVISION, THE INJURED PARTY OR PARTIES SHALL BE REQUIRED TO PRESENT PROOF ONLY OF THE GROSS REVENUE ATTRIBUTABLE TO THE UNAUTHORIZED USE, AND THE PERSON WHO VIOLATED THIS SECTION IS REQUIRED TO PROVE HIS OR HER DEDUCTIBLE EXPENSES. III. PUNITIVE DAMAGES MAY ALSO BE AWARDED TO THE INJURED PARTY OR PARTIES. D. FOR PURPOSES OF THIS SUBDIVISION: I. IT SHALL NOT BE A VIOLATION OF PARAGRAPH A OF THIS SUBDIVISION IF THE WORK IS A PLAY, BOOK, MAGAZINE, NEWSPAPER, OR OTHER LITERARY WORK; MUSICAL WORK OR COMPOSITION; WORK OF ART OR OTHER VISUAL WORK; WORK OF A. 5605--C 3 POLITICAL, PUBLIC INTEREST, EDUCATIONAL OR NEWSWORTHY VALUE, INCLUDING COMMENT, CRITICISM, PARODY OR SATIRE; AUDIO OR AUDIOVISUAL WORK, RADIO OR TELEVISION PROGRAM, IF IT IS FICTIONAL OR NONFICTIONAL ENTERTAINMENT; OR AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR ANY OF THE FOREGOING WORKS. II. IT SHALL NOT BE A VIOLATION OF PARAGRAPH B OF THIS SUBDIVISION IF THE WORK IS OF PARODY, SATIRE, COMMENTARY, OR CRITICISM; WORKS OF POLI- TICAL OR NEWSWORTHY VALUE, OR SIMILAR WORKS, SUCH AS DOCUMENTARIES, DOCUDRAMAS, OR HISTORICAL OR BIOGRAPHICAL WORKS, REGARDLESS OF THE DEGREE OF FICTIONALIZATION; A REPRESENTATION OF A DECEASED PERFORMER AS HIMSELF OR HERSELF, REGARDLESS OF THE DEGREE OF FICTIONALIZATION, EXCEPT IN A LIVE PERFORMANCE OF A MUSICAL WORK; DE MINIMIS OR INCIDENTAL; OR AN ADVERTISEMENT OR COMMERCIAL ANNOUNCEMENT FOR ANY OF THE FOREGOING WORKS. III. IT SHALL NOT BE A VIOLATION OF THIS SECTION IF THE USE OF A NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS OCCURS IN CONNECTION WITH ANY NEWS, PUBLIC AFFAIRS, OR SPORTS PROGRAM OR ACCOUNT, REGARDLESS OF FORMAT, MEDIUM OR MEANS OF TRANSMISSION, OR ANY POLITICAL CAMPAIGN. IV. IT SHALL NOT BE A VIOLATION OF THIS SECTION IF THE USE IS OF A NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS IN A COMMERCIAL MEDIUM SOLELY BECAUSE THE MATERIAL CONTAINING THE USE IS COMMERCIALLY SPONSORED OR CONTAINS PAID ADVERTISING OR PRODUCT PLACEMENT, OR INCLUDES WITHIN IT A USE IN CONNECTION WITH A PRODUCT, ARTICLE OF MERCHANDISE, GOOD, OR SERVICE. RATHER, IT SHALL BE A QUESTION OF FACT WHETHER OR NOT THE USE OF THE DECEASED PERSONALITY'S NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS WAS SO DIRECTLY CONNECTED WITH THE COMMERCIAL SPONSORSHIP OR WITH THE PAID ADVERTISING OR PRODUCT PLACEMENT AS TO CONSTITUTE A USE FOR WHICH CONSENT IS REQUIRED UNDER THIS SUBDIVISION. E. IN RELATION TO A VIOLATION OF PARAGRAPH A OF THIS SUBDIVISION, IF A WORK THAT IS PROTECTED UNDER PARAGRAPH D OF THIS SUBDIVISION INCLUDES WITHIN IT A USE IN CONNECTION WITH A PRODUCT, ARTICLE OF MERCHANDISE, GOOD, OR SERVICE, THIS USE SHALL NOT BE EXEMPT UNDER PARAGRAPH D OF THIS SUBDIVISION, NOTWITHSTANDING THE UNPROTECTED USE'S INCLUSION IN A WORK OTHERWISE EXEMPT UNDER PARAGRAPH D OF THIS SUBDIVISION, IF THE CLAIMANT PROVES THAT THIS USE IS SO DIRECTLY CONNECTED WITH A PRODUCT, ARTICLE OF MERCHANDISE, GOOD, OR SERVICE AS TO CONSTITUTE AN ACT OF ADVERTISING, SELLING, OR SOLICITING PURCHASES OF THAT PRODUCT, ARTICLE OF MERCHAN- DISE, GOOD, OR SERVICE BY THE DECEASED PERSONALITY WITHOUT PRIOR CONSENT FOR THE USE UNDER PARAGRAPH A OF THIS SUBDIVISION FROM THE PERSON OR PERSONS SPECIFIED IN SUBDIVISION FOUR OF THIS SECTION. 3. THE RIGHTS RECOGNIZED UNDER THIS SECTION ARE PROPERTY RIGHTS, FREE- LY TRANSFERABLE OR DESCENDIBLE, IN WHOLE OR IN PART, BY CONTRACT, LICENSE, GIFT, OR BY MEANS OF ANY TRUST OR ANY OTHER TESTAMENTARY INSTRUMENT. IN THE ABSENCE OF AN EXPRESS TRANSFER IN A TESTAMENTARY INSTRUMENT OF THE DECEASED PERSONALITY'S RIGHTS IN HIS OR HER NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS, A PROVISION IN THE TESTAMEN- TARY INSTRUMENT THAT PROVIDES FOR THE DISPOSITION OF THE RESIDUE OF THE DECEASED PERSONALITY'S ASSETS SHALL BE EFFECTIVE TO TRANSFER THE RIGHTS RECOGNIZED UNDER THIS SECTION IN ACCORDANCE WITH THE TERMS OF THAT PROVISION. THE RIGHTS ESTABLISHED BY THIS SECTION SHALL ALSO BE FREELY TRANSFERABLE OR DESCENDIBLE BY CONTRACT, LICENSE, GIFT, TRUST, OR ANY OTHER TESTAMENTARY INSTRUMENT BY ANY SUBSEQUENT OWNER OF THE DECEASED PERSONALITY'S RIGHTS AS RECOGNIZED BY THIS SECTION. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO RENDER INVALID OR UNENFORCEABLE ANY CONTRACT ENTERED INTO BY A DECEASED PERSONALITY DURING HIS OR HER LIFE- TIME BY WHICH THE DECEASED PERSONALITY ASSIGNED THE RIGHTS, IN WHOLE OR A. 5605--C 4 IN PART, TO USE HIS OR HER NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKE- NESS. 4. THE CONSENT REQUIRED BY THIS SECTION SHALL BE EXERCISABLE BY THE PERSON OR PERSONS TO WHOM THE RIGHT OF CONSENT, OR PORTION THEREOF, HAS BEEN TRANSFERRED IN ACCORDANCE WITH SUBDIVISION THREE OF THIS SECTION, OR IF NO TRANSFER HAS OCCURRED, THEN BY THE PERSON OR PERSONS TO WHOM THE RIGHT OF CONSENT, OR PORTION THEREOF, HAS PASSED IN ACCORDANCE WITH SUBDIVISION FIVE OF THIS SECTION. 5. SUBJECT TO SUBDIVISIONS THREE AND FOUR OF THIS SECTION, THE RIGHTS UNDER THIS SECTION 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 RIGHTS UNDER THIS SECTION. 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. 6. IF ANY DECEASED PERSONALITY DOES NOT TRANSFER HIS OR HER RIGHTS UNDER THIS SECTION BY CONTRACT, OR BY MEANS OF A TRUST OR TESTAMENTARY INSTRUMENT, AND THERE ARE NO SURVIVING PERSONS AS DESCRIBED IN SUBDIVI- SION FIVE OF THIS SECTION, THEN THE RIGHTS SET FORTH IN SUBDIVISION TWO OF THIS SECTION SHALL TERMINATE. 7. A. ANY PERSON CLAIMING TO BE A SUCCESSOR IN INTEREST TO THE RIGHTS OF A DECEASED PERSONALITY UNDER THIS SECTION OR A LICENSEE THEREOF MAY REGISTER THAT CLAIM WITH THE SECRETARY OF STATE ON A FORM PRESCRIBED BY THE SECRETARY OF STATE AND UPON PAYMENT OF A FEE, WHICH THE SECRETARY OF STATE SHALL SET BY RULE. THE FORM SHALL BE VERIFIED AND SHALL INCLUDE THE NAME AND DATE OF DEATH OF THE DECEASED PERSONALITY, THE NAME AND ADDRESS OF THE CLAIMANT, THE BASIS OF THE CLAIM, AND THE RIGHTS CLAIMED. A SUCCESSOR IN INTEREST TO THE RIGHTS OF A DECEASED PERSONALITY UNDER THIS SECTION OR A LICENSEE THEREOF SHALL NOT HAVE A CAUSE OF ACTION FOR A USE PROHIBITED BY THIS SECTION THAT OCCURS BEFORE THE SUCCESSOR IN INTEREST OR LICENSEE REGISTERS A CLAIM OF THE RIGHTS. B. UPON RECEIPT AND AFTER FILING OF ANY DOCUMENT UNDER THIS SECTION, THE SECRETARY OF STATE SHALL POST THE DOCUMENT ALONG WITH THE ENTIRE REGISTRY OF PERSONS CLAIMING TO BE A SUCCESSOR IN INTEREST TO THE RIGHTS OF A DECEASED PERSONALITY OR A REGISTERED LICENSEE UNDER THIS SECTION UPON THE SECRETARY OF STATE'S INTERNET WEBSITE. C. CLAIMS REGISTERED UNDER THIS SUBDIVISION SHALL BE PUBLIC RECORDS. 8. AN ACTION SHALL NOT BE BROUGHT UNDER THIS SECTION BY REASON OF ANY USE OF A DECEASED PERSONALITY'S NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS OCCURRING AFTER THE EXPIRATION OF FORTY YEARS AFTER THE DEATH OF THE DECEASED PERSONALITY. 9. NOTHING IN THIS SECTION SHALL APPLY TO THE OWNERS OR EMPLOYEES OF ANY MEDIUM USED FOR ADVERTISING, INCLUDING, BUT NOT LIMITED TO, NEWSPA- PERS, MAGAZINES, RADIO AND TELEVISION NETWORKS AND STATIONS, CABLE TELE- VISION SYSTEMS, BILLBOARDS, AND TRANSIT ADVERTISEMENTS, BY WHOM ANY ADVERTISEMENT OR SOLICITATION IN VIOLATION OF THIS SECTION IS PUBLISHED OR DISSEMINATED, UNLESS IT IS ESTABLISHED THAT THE OWNERS OR EMPLOYEES HAD ACTUAL KNOWLEDGE BY PRIOR NOTIFICATION OF THE UNAUTHORIZED USE OF THE DECEASED PERFORMER'S DIGITAL REPLICA OR DECEASED PERSONALITY'S NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR LIKENESS AS PROHIBITED BY THIS SECTION. 10. THE PROVISIONS OF THIS SECTION ARE IN ADDITION TO, BUT SHALL NOT SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY. 11. THIS SECTION SHALL APPLY TO THE ADJUDICATION OF LIABILITY AND THE IMPOSITION OF ANY DAMAGES OR OTHER REMEDIES IN CASES IN WHICH THE LIABILITY, DAMAGES, AND OTHER REMEDIES ARISE FROM ACTS OCCURRING DIRECT- A. 5605--C 5 LY IN THIS STATE. FOR PURPOSES OF THIS SECTION, ACTS GIVING RISE TO LIABILITY SHALL BE LIMITED TO THE USE, ON OR IN PRODUCTS, MERCHANDISE, GOODS, OR SERVICES, OR THE ADVERTISING OR SELLING, OR SOLICITING PURCHASES OF, PRODUCTS, MERCHANDISE, GOODS, OR SERVICES PROHIBITED BY THIS SECTION. 12. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT, OR TO ENLARGE, THE PROTECTIONS THAT 47 U.S.C. § 230 CONFERS ON AN INTERACTIVE COMPUTER SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230. § 2. The civil rights law is amended by adding a new section 52-c to read as follows: § 52-C. PRIVATE RIGHT OF ACTION FOR UNLAWFUL DISSEMINATION OR PUBLICA- TION OF A SEXUALLY EXPLICIT DEPICTION OF AN INDIVIDUAL. 1. FOR THE PURPOSES OF THIS SECTION: A. "DEPICTED INDIVIDUAL" MEANS AN INDIVIDUAL WHO APPEARS, AS A RESULT OF DIGITIZATION, TO BE GIVING A PERFORMANCE THEY DID NOT ACTUALLY PERFORM OR TO BE PERFORMING IN A PERFORMANCE THAT WAS ACTUALLY PERFORMED BY THE DEPICTED INDIVIDUAL BUT WAS SUBSEQUENTLY ALTERED TO BE IN VIOLATION OF THIS SECTION. B. "DIGITIZATION" MEANS TO REALISTICALLY DEPICT THE NUDE BODY PARTS OF ANOTHER HUMAN BEING AS THE NUDE BODY PARTS OF THE DEPICTED INDIVIDUAL, COMPUTER-GENERATED NUDE BODY PARTS AS THE NUDE BODY PARTS OF THE DEPICTED INDIVIDUAL OR THE DEPICTED INDIVIDUAL ENGAGING IN SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW, IN WHICH THE DEPICTED INDIVIDUAL DID NOT ENGAGE. C. "INDIVIDUAL" MEANS A NATURAL PERSON. D. "PERSON" MEANS A HUMAN BEING OR LEGAL ENTITY. E. "SEXUALLY EXPLICIT MATERIAL" MEANS ANY PORTION OF AN AUDIO VISUAL WORK THAT SHOWS THE DEPICTED INDIVIDUAL PERFORMING IN THE NUDE, MEANING WITH AN UNCLOTHED OR EXPOSED INTIMATE PART, AS DEFINED IN SECTION 245.15 OF THE PENAL LAW, OR APPEARING TO ENGAGE IN, OR BEING SUBJECTED TO, SEXUAL CONDUCT, AS DEFINED IN SUBDIVISION TEN OF SECTION 130.00 OF THE PENAL LAW. 2. A. A DEPICTED INDIVIDUAL SHALL HAVE A CAUSE OF ACTION AGAINST A PERSON WHO, DISCLOSES, DISSEMINATES OR PUBLISHES SEXUALLY EXPLICIT MATE- RIAL RELATED TO THE DEPICTED INDIVIDUAL, AND THE PERSON KNOWS OR REASON- ABLY SHOULD HAVE KNOWN THE DEPICTED INDIVIDUAL IN THAT MATERIAL DID NOT CONSENT TO ITS CREATION, DISCLOSURE, DISSEMINATION, OR PUBLICATION. B. IT SHALL NOT BE A DEFENSE TO AN ACTION UNDER THIS SECTION THAT THERE IS A DISCLAIMER IN THE SEXUALLY EXPLICIT MATERIAL THAT COMMUNI- CATES THAT THE INCLUSION OF THE DEPICTED INDIVIDUAL IN THE SEXUALLY EXPLICIT MATERIAL WAS UNAUTHORIZED OR THAT THE DEPICTED INDIVIDUAL DID NOT PARTICIPATE IN THE CREATION OR DEVELOPMENT OF THE MATERIAL. 3. A. A DEPICTED INDIVIDUAL MAY ONLY CONSENT TO THE CREATION, DISCLO- SURE, DISSEMINATION, OR PUBLICATION OF SEXUALLY EXPLICIT MATERIAL BY KNOWINGLY AND VOLUNTARILY SIGNING AN AGREEMENT WRITTEN IN PLAIN LANGUAGE THAT INCLUDES A GENERAL DESCRIPTION OF THE SEXUALLY EXPLICIT MATERIAL AND THE AUDIOVISUAL WORK IN WHICH IT WILL BE INCORPORATED. B. A DEPICTED INDIVIDUAL MAY RESCIND CONSENT BY DELIVERING WRITTEN NOTICE WITHIN THREE BUSINESS DAYS FROM THE DATE CONSENT WAS GIVEN TO THE PERSON IN WHOSE FAVOR CONSENT WAS MADE, UNLESS ONE OF THE FOLLOWING REQUIREMENTS IS SATISFIED: I. THE DEPICTED INDIVIDUAL IS GIVEN AT LEAST THREE BUSINESS DAYS TO REVIEW THE TERMS OF THE AGREEMENT BEFORE SIGNING IT; OR A. 5605--C 6 II. IF THE DEPICTED INDIVIDUAL IS REPRESENTED, THE ATTORNEY, TALENT AGENT, OR PERSONAL MANAGER AUTHORIZED TO REPRESENT THE DEPICTED INDIVID- UAL PROVIDES ADDITIONAL WRITTEN APPROVAL OF THE SIGNED AGREEMENT. 4. A. A PERSON IS NOT LIABLE UNDER THIS SECTION IF: I. THE PERSON DISCLOSES, DISSEMINATES OR PUBLISHES THE SEXUALLY EXPLICIT MATERIAL IN THE COURSE OF REPORTING UNLAWFUL ACTIVITY, EXERCIS- ING THE PERSON'S LAW ENFORCEMENT DUTIES, OR HEARINGS, TRIALS OR OTHER LEGAL PROCEEDINGS; OR II. THE SEXUALLY EXPLICIT MATERIAL IS A MATTER OF LEGITIMATE PUBLIC CONCERN, A WORK OF POLITICAL OR NEWSWORTHY VALUE OR SIMILAR WORK, OR COMMENTARY, CRITICISM OR DISCLOSURE THAT IS OTHERWISE PROTECTED BY THE CONSTITUTION OF THIS STATE OR THE UNITED STATES; PROVIDED THAT SEXUALLY EXPLICIT MATERIAL SHALL NOT BE CONSIDERED OF NEWSWORTHY VALUE SOLELY BECAUSE THE DEPICTED INDIVIDUAL IS A PUBLIC FIGURE. 5. IN ANY ACTION COMMENCED PURSUANT TO THIS SECTION, THE FINDER OF FACT, IN ITS DISCRETION, MAY AWARD INJUNCTIVE RELIEF, PUNITIVE DAMAGES, COMPENSATORY DAMAGES, AND REASONABLE COURT COSTS AND ATTORNEY'S FEES. 6. A CAUSE OF ACTION OR SPECIAL PROCEEDING UNDER THIS SECTION SHALL BE COMMENCED THE LATER OF EITHER: A. THREE YEARS AFTER THE DISSEMINATION OR PUBLICATION OF SEXUALLY EXPLICIT MATERIAL; OR B. ONE YEAR FROM THE DATE A PERSON DISCOVERS, OR REASONABLY SHOULD HAVE DISCOVERED, THE DISSEMINATION OR PUBLICATION OF SUCH SEXUALLY EXPLICIT MATERIAL. 7. NOTHING IN THIS SECTION SHALL BE READ TO REQUIRE A PRIOR CRIMINAL COMPLAINT, PROSECUTION OR CONVICTION TO ESTABLISH THE ELEMENTS OF THE CAUSE OF ACTION PROVIDED FOR IN THIS SECTION. 8. THE PROVISIONS OF THIS SECTION INCLUDING THE REMEDIES ARE IN ADDI- TION TO, AND SHALL NOT SUPERSEDE, ANY OTHER RIGHTS OR REMEDIES AVAILABLE IN LAW OR EQUITY. 9. IF ANY PROVISION OF THIS SECTION OR ITS APPLICATION TO ANY PERSON OR CIRCUMSTANCE IS HELD INVALID, THE INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OR APPLICATIONS OF THIS SECTION WHICH CAN BE GIVEN EFFECT WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO THIS END THE PROVISIONS OF THIS SECTION ARE SEVERABLE. 10. NOTHING IN THIS SECTION SHALL BE CONSTRUED TO LIMIT, OR TO ENLARGE, THE PROTECTIONS THAT 47 U.S.C. § 230 CONFERS ON AN INTERACTIVE COMPUTER SERVICE FOR CONTENT PROVIDED BY ANOTHER INFORMATION CONTENT PROVIDER, AS SUCH TERMS ARE DEFINED IN 47 U.S.C. § 230. § 3. 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.