NY State Senate Bill S5959D

Archive: Last Bill Status - Signed by Governor

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

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Actions

view actions (23)

	Assembly Actions - Lowercase Senate Actions - UPPERCASE
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 22, 2020	referred to ways and means delivered to assembly passed senate
Jul 21, 2020	ordered to third reading cal.788 reported and committed to rules
Jul 17, 2020	print number 5959d
Jul 17, 2020	amend and recommit to finance
Mar 10, 2020	reported and committed to finance
Mar 05, 2020	print number 5959c
Mar 05, 2020	amend and recommit to judiciary
Jan 08, 2020	referred to judiciary
Jun 16, 2019	print number 5959b
Jun 16, 2019	amend and recommit to judiciary
Jun 07, 2019	print number 5959a
Jun 07, 2019	amend and recommit to judiciary
May 17, 2019	committee discharged and committed to judiciary
May 16, 2019	referred to codes

Votes

view votes

Jul 22, 2020 - floor Vote

S5959D

floor

Aye

Nay

Absent

Excused

Abstained

Jul 21, 2020 - Finance committee Vote

S5959D

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Jul 21, 2020 - Rules committee Vote

S5959D

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Mar 10, 2020 - Judiciary committee Vote

S5959C

committee

Aye

Nay

Aye with Reservations

Absent

Excused

Abstained

Bill Amendments

Original

D (Active)

Original

D (Active)

Co-Sponsors

S5959 - Details

See Assembly Version of this Bill:: A5605
Law Section:: Civil Rights Law
Laws Affected:: Add §§50-f & 52-c, Civ Rts L
Versions Introduced in 2017-2018 Legislative Session:: S5857, A8155

S5959 - Summary

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.

S5959 - Sponsor Memo

 
BILL NUMBER: S5959

SPONSOR: SAVINO
 
TITLE OF BILL:  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

 
PURPOSE OF BILL:

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

 
SUMMARY OF PROVISIONS:

Section 1- Civil Rights Law § 50 is renumber 50-f and a new § 50 is

added - definition of terms

Section 2 - Civil Rights Law § 50-f was renumbered and the right to
publicity was added

Section 3 - Civil Rights Law is amended to add three new section:

50-g - duration of an individual's right to publicity

50-h - methods of transfer and conveyance

50-i. - no abrogation of rights and remedies

Section 4 - amends § 51 of the civil rights law - applicability

Section5 - amends section heading and subdivision 3 of section 215 of
the civil practice law and rules to add the right of publicity

Section 6 - amends subdivision 1 of section 35.03 of the arts and
cultural affairs law - adding exclusive licensing contracts for infants
beyond 21 months that may be approved by the supreme court of surrogate
court.

Section 7 - Severability clause

Section 8 - 180 day effective date

 
JUSTIFICATION:

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

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

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

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

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

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

 
LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -
referred to judiciary with no further action

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

S5959 - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5959
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by  Sen.  SAVINO -- read twice and ordered printed, and when
   printed to be committed to the Committee on Codes
 
 AN ACT to amend the civil rights law and the 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.
   6. "EXPRESSIVE SOUND RECORDING OR AUDIOVISUAL WORK" INCLUDES AN AUDIO-
 BOOK, INTERACTIVE GAME, LIVE PERFORMANCE,  MOVIE,  RADIO  OR  TELEVISION
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05914-03-9

 S. 5959                             2
 
 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
 OF THIS ARTICLE MUST INCLUDE A GENERAL DESCRIPTION OF THE DEPICTION  AND
 THE  EXPRESSIVE  AUDIOVISUAL  WORK  IN WHICH IT WILL BE INCORPORATED. AN

 S. 5959                             3
 
 INDIVIDUAL HAS THREE BUSINESS DAYS TO REVOKE WRITTEN CONSENT FOR A SEXU-
 ALLY EXPLICIT DIGITAL DEPICTION UNLESS:
   (A)  THE INDIVIDUAL WAS GIVEN NO LESS THAN SEVENTY-TWO 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. AN INDIVIDUAL  MAY  STIPU-
 LATE  IN  A WRITTEN CONTRACT THAT IF IN EXECUTING A FUTURE CONTRACT, THE
 PERSON FAILS TO  SATISFY  AT  LEAST  ONE  OF  THE  CONSENT  REQUIREMENTS
 PROVIDED FOR IN THIS SECTION, NOTICE OF A REVOCATION SHALL BE CONSIDERED
 DELIVERED ACCORDING TO THIS SECTION.
   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

 S. 5959                             4
 
 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 TENTH ANNIVERSARY OF THE DECEASED INDIVIDUAL'S DEATH,  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.   A RIGHTS HOLDER MAY VOLUNTARILY REGISTER
 THE CLAIM AT ANY TIME PRIOR TO THE TEN-YEAR ANNIVERSARY OF THE  DECEASED
 INDIVIDUAL'S  DEATH.   THE FORM SHALL INCLUDE THE NAME AND DATE OF DEATH
 OF THE DECEASED INDIVIDUAL, THE NAME AND ADDRESS OF  THE  CLAIMANT,  THE
 BASIS OF THE CLAIM, AND A SWORN AFFIDAVIT UNDER PENALTY OF PERJURY AS TO
 THE  RIGHTS  CLAIMED. CLAIMS REGISTERED UNDER THIS REGISTRY AND INFORMA-
 TION 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 TEN YEARS 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-

 S. 5959                             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, WITH THE EXCEPTION
 OF THE SAFE HARBOR PERIOD LISTED IN SUBDIVISION SEVEN OF SECTION FIFTY-H

 S. 5959                             6
 
 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 CLEAR IMPRESSION THAT  THE  PROFES-
 SIONAL  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 CLEAR 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 CLEAR IMPRESSION THAT THE PROFES-
 SIONAL 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

 S. 5959                             7
 
 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.  A  PERSON SHALL NOT BE LIABLE IF THE USE OF THE
 VISUAL WORK WAS NOT AUTHORIZED BY THE PERSON.
   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

 S. 5959                             8

 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
 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

 S. 5959                             9
 
 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

S5959A - Details

See Assembly Version of this Bill:: A5605
Law Section:: Civil Rights Law
Laws Affected:: Add §§50-f & 52-c, Civ Rts L
Versions Introduced in 2017-2018 Legislative Session:: S5857, A8155

S5959A - Summary

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.

S5959A - Sponsor Memo

 
BILL NUMBER: S5959A

SPONSOR: SAVINO
 
TITLE OF BILL:  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

 
PURPOSE OF BILL:

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

 
SUMMARY OF PROVISIONS:

Section 1- Civil Rights Law § 50 is renumber 50-f and a new § 50 is

added - definition of terms

Section 2 - Civil Rights Law § 50-f was renumbered and the right to
publicity was added

Section 3 - Civil Rights Law is amended to add three new section:
  .  50-g - duration of an individual's right to publicity
  .  50-h - methods of transfer and conveyance
  .  50-i - no abrogation of rights and remedies

Section 4 - amends § 51 of the civil rights law - applicability

Section 5 - amends section heading and subdivision 3 of section 215 of
the civil practice law and rules to add the right of publicity

Section 6 - amends subdivision 1 of section 35.03 of the arts and
cultural affairs law - adding exclusive licensing contracts for infants
beyond 21 months that may be approved by the supreme court of surrogate
court.

Section 7 - Severability clause

Section 8 - 180 day effective date

 
JUSTIFICATION:

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

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

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

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

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

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

 
LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -
referred to judiciary with no further action

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

S5959A - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5959--A
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by Sens. SAVINO, HARCKHAM, JACKSON -- read twice and ordered
   printed, and when printed to be committed to the Committee on Codes --
   committee discharged and said bill committed to the Committee on Judi-
   ciary -- 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.

                                                            LBD05914-05-9

 S. 5959--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

 S. 5959--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

 S. 5959--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-

 S. 5959--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.

 S. 5959--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

 S. 5959--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.]

 S. 5959--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.

 S. 5959--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

S5959B - Details

See Assembly Version of this Bill:: A5605
Law Section:: Civil Rights Law
Laws Affected:: Add §§50-f & 52-c, Civ Rts L
Versions Introduced in 2017-2018 Legislative Session:: S5857, A8155

S5959B - Summary

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.

S5959B - Sponsor Memo

 
BILL NUMBER: S5959B

SPONSOR: SAVINO
 
TITLE OF BILL:  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

 
PURPOSE OF BILL:

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

 
SUMMARY OF PROVISIONS:

Section 1- Civil Rights Law § 50 is renumber 50-f and a new § 50 is

added - definition of terms

Section 2 - Civil Rights Law § 50-f was renumbered and the right to
publicity was added

Section 3 - Civil Rights Law is amended to add three new section:
 * 50-g - duration of an individual's right to publicity
 * 50-h - methods of transfer and conveyance
 * 50-i. - no abrogation of rights and remedies

Section 4 - amends § 51 of the civil rights law - applicability

Section 5 - amends section heading and subdivision 3 of section 215 of
the civil practice law and rules to add the right of publicity

Section 6 - amends subdivision 1 of section 35.03 of the arts and
cultural affairs law - adding exclusive licensing contracts for infants
beyond 21 months that may be approved by the supreme court of surrogate
court.

Section 7 - Severability clause

Section 8 - 180 day effective date

 
JUSTIFICATION:

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

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

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

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

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

 
LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -
referred to judiciary with no further action

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

S5959B - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5959--B
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by  Sens.  SAVINO, BENJAMIN, HARCKHAM, JACKSON -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Codes -- committee  discharged  and  said  bill  committed  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.

                                                            LBD05914-07-9

 S. 5959--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

 S. 5959--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

 S. 5959--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

 S. 5959--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

 S. 5959--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-

 S. 5959--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

 S. 5959--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

 S. 5959--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

S5959C - Details

See Assembly Version of this Bill:: A5605
Law Section:: Civil Rights Law
Laws Affected:: Add §§50-f & 52-c, Civ Rts L
Versions Introduced in 2017-2018 Legislative Session:: S5857, A8155

S5959C - Summary

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.

S5959C - Sponsor Memo

 
BILL NUMBER: S5959C

SPONSOR: SAVINO
 
TITLE OF BILL:

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 unlaw-
ful dissemination or publication of a sexually explicit depiction of an
individual

 
PURPOSE OF BILL:

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

 
SUMMARY OF PROVISIONS:

Section 1- new Civil Rights Law § 50- f- definition of terms

Section 2 - new Civil Rights Law § 52-c - private right of action

Section 3 - 180 day effective date

 
JUSTIFICATION:

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

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

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

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

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

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

 
LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -
referred to judiciary with no further action

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

S5959C - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5959--C
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by  Sens.  SAVINO, BENJAMIN, HARCKHAM, JACKSON -- read twice
   and ordered printed, and when printed to be committed to the Committee
   on Codes -- committee  discharged  and  said  bill  committed  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  --  recommitted  to the Committee on Judiciary in
   accordance with Senate Rule 6, sec. 8 --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 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.

                                                            LBD05914-10-0

 S. 5959--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 ACTUAL DAMAGES SUFFERED BY THE INJURED PARTY OR PARTIES,
 AS A RESULT OF THE UNAUTHORIZED USE, AND ANY PROFITS FROM THE  UNAUTHOR-
 IZED  USE  THAT  ARE  ATTRIBUTABLE  TO  SUCH  USE AND ARE NOT TAKEN INTO
 ACCOUNT IN COMPUTING THE ACTUAL 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.
   IV. THE PREVAILING PARTY OR PARTIES IN ANY ACTION UNDER  THIS  SECTION
 SHALL ALSO BE ENTITLED TO ATTORNEY'S FEES AND COSTS.
   D. FOR PURPOSES OF THIS SUBDIVISION:

 S. 5959--C                          3
 
   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
 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

 S. 5959--C                          4
 
 CONTRACT ENTERED INTO BY A DECEASED PERSONALITY DURING HIS OR HER  LIFE-
 TIME  BY WHICH THE DECEASED PERSONALITY ASSIGNED THE RIGHTS, IN WHOLE OR
 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 AND NOTWITH-
 STANDING SECTION 4-1.1 OF THE ESTATES, POWERS AND TRUSTS LAW, AFTER  THE
 DEATH  OF  ANY PERSON, THE RIGHTS UNDER THIS SECTION SHALL BELONG TO THE
 FOLLOWING PERSON OR PERSONS AND MAY BE EXERCISED, ON BEHALF OF  AND  FOR
 THE BENEFIT OF ALL OF THOSE PERSONS, BY THOSE PERSONS WHO, IN THE AGGRE-
 GATE, ARE ENTITLED TO MORE THAN A ONE-HALF INTEREST IN THE RIGHTS:
   A. THE ENTIRE INTEREST IN THOSE RIGHTS BELONGS TO THE SURVIVING SPOUSE
 OF  THE  DECEASED PERSONALITY UNLESS THERE ARE ANY SURVIVING CHILDREN OR
 GRANDCHILDREN OF THE DECEASED PERSONALITY, IN WHICH CASE ONE-HALF OF THE
 ENTIRE INTEREST IN THOSE RIGHTS BELONGS TO THE SURVIVING SPOUSE.
   B. THE ENTIRE INTEREST IN THOSE RIGHTS BELONGS TO THE SURVIVING  CHIL-
 DREN  OF  THE  DECEASED PERSONALITY AND TO THE SURVIVING CHILDREN OF ANY
 DEAD CHILD OF THE DECEASED PERSONALITY UNLESS THE  DECEASED  PERSONALITY
 HAS A SURVIVING SPOUSE, IN WHICH CASE THE OWNERSHIP OF A ONE-HALF INTER-
 EST IN RIGHTS IS DIVIDED AMONG THE SURVIVING CHILDREN AND GRANDCHILDREN.
   C.  IF  THERE  IS  NO  SURVIVING  SPOUSE, AND NO SURVIVING CHILDREN OR
 GRANDCHILDREN, THEN THE ENTIRE INTEREST IN THOSE RIGHTS BELONGS  TO  THE
 SURVIVING PARENT OR PARENTS OF THE DECEASED PERSONALITY.
   D. THE RIGHTS OF THE DECEASED PERSONALITY'S CHILDREN AND GRANDCHILDREN
 ARE IN ALL CASES DIVIDED BY REPRESENTATION.
   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.

 S. 5959--C                          5
 
   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 PERSONALITY'S NAME, VOICE, SIGNATURE, PHOTOGRAPH, OR  LIKE-
 NESS 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-
 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.
   13. A. A DEFENDANT TO AN ACTION UNDER THIS SECTION MAY MOVE TO DISMISS
 THE COMPLAINT WITHIN SIXTY DAYS OF SERVICE OF THE COMPLAINT OR ANY LATER
 DATE THE COURT DEEMS PROPER. THE COURT SHALL SET A HEARING ON THE MOTION
 WITHIN  THIRTY  DAYS OF SERVICE OF THE MOTION, IF PRACTICABLE. THE COURT
 SHALL GRANT SUCH MOTION UNLESS THE COURT DETERMINES THAT  THE  PLAINTIFF
 HAS  ESTABLISHED  THAT  THE  ACTION  WAS  COMMENCED  OR CONTINUED WITH A
 SUBSTANTIAL BASIS IN FACT AND LAW OR IS SUPPORTED BY A SUBSTANTIAL ARGU-
 MENT FOR THE EXTENSION, MODIFICATION OR REVERSAL OF EXISTING LAW.   SUCH
 DETERMINATION  SHALL NOT BE ADMISSIBLE IN EVIDENCE AT ANY LATER STAGE OF
 THE ACTION OR IN ANY SUBSEQUENT ACTION AND SHALL NOT AFFECT  ANY  BURDEN
 OR DEGREE OF PROOF OTHERWISE APPLICABLE.
   B.  IN  MAKING  ITS DETERMINATION, THE COURT SHALL CONSIDER THE PLEAD-
 INGS, AFFIDAVITS STATING THE FACTS UPON WHICH THE LIABILITY  OR  DEFENSE
 IS BASED, AND ORAL ARGUMENT, BUT SHALL NOT CONDUCT A FURTHER EVIDENTIARY
 HEARING ABSENT EXCEPTIONAL CIRCUMSTANCES.
   C.  THE  COURT  SHALL  AWARD  THE PREVAILING PARTY ANY ATTORNEY'S FEES
 INCURRED DUE TO THE MOTION, UNLESS THE COURT FINDS THAT THE NON-PREVAIL-
 ING POSITION ON THE MOTION HAS SUBSTANTIAL MERIT.
   D. ALL DISCLOSURE PROCEEDINGS IN THE ACTION SHALL BE STAYED  UPON  THE
 FILING  OF  A NOTICE OF MOTION MADE PURSUANT TO THIS SUBDIVISION. EXCEPT
 UPON GOOD CAUSE SHOWN, THE STAY SHALL REMAIN IN EFFECT UNTIL  NOTICE  OF
 THE  ENTRY OF THE ORDER RULING ON THE MOTION AND THROUGH THE PENDENCY OF
 ANY APPEALS.
   § 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.

 S. 5959--C                          6
 
   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
   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

 S. 5959--C                          7
 
   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.

Co-Sponsors

S5959D (ACTIVE) - Details

See Assembly Version of this Bill:: A5605
Law Section:: Civil Rights Law
Laws Affected:: Add §§50-f & 52-c, Civ Rts L
Versions Introduced in 2017-2018 Legislative Session:: S5857, A8155

S5959D (ACTIVE) - Summary

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.

S5959D (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S5959D

SPONSOR: SAVINO
 
TITLE OF BILL:

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 unlaw-
ful dissemination or publication of a sexually explicit depiction of an
individual

 
PURPOSE:

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

 
SUMMARY OF PROVISIONS:

Section 1 adds a new Civil Rights Law § 50-f, creating the right of
publicity.

Section 2 adds a new Civil Rights Law § 52-c, creating a private right
of action for unlawful dissemination or publication of a sexually
explicit depiction of an individual.

Section 3 provides the effective date.

 
JUSTIFICATION:

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

The Right of Publicity refers to every individual's inherent right to
control the commercial use of his or her personal characteristics, which
can include name, portrait or picture, voice or signature, each a part
of an individual's persona. The Right of Publicity also protects a
deceased performer's digital replica in expressive works to protect
against persons or corporations from misappropriating a professional
performance.

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

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

Finally, the Right of Publicity created through this legislation applies
to acts that occur within New York State.  In conclusion, this bill is
balanced in protecting essential first amendment rights consistent with
current law while maintaining the current status of the right of privacy
law and still providing protections for an individual's right of public-
ity, whether they are a child or an adult, for forty years after death.
This bill also establishes protections for victims of nonconsensual
digitally manipulated sexually explicit material, such as deepfake
pornography.

 
LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -
referred to judiciary with no further action

 
EFFECTIVE DATE:
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.

S5959D (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  5959--D
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2019
                                ___________
 
 Introduced  by  Sens.  SAVINO,  BENJAMIN, CARLUCCI, HARCKHAM, JACKSON --
   read twice and ordered printed, and when printed to  be  committed  to
   the Committee on Codes -- committee discharged and said bill committed
   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 -- recommitted to the Committee on Judi-
   ciary  in  accordance  with  Senate  Rule  6,  sec.  8  --   committee
   discharged, bill amended, ordered reprinted as amended and recommitted
   to  said  committee  --  reported  favorably  from  said committee and
   committed to the Committee on Finance --  committee  discharged,  bill
   amended,  ordered reprinted as amended and recommitted to said commit-
   tee
 
 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,

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

                                                            LBD05914-19-0

 S. 5959--D                          2
 
 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.
   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:

 S. 5959--D                          3
 
   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
 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

 S. 5959--D                          4
 
 CONTRACT ENTERED INTO BY A DECEASED PERSONALITY DURING HIS OR HER  LIFE-
 TIME  BY WHICH THE DECEASED PERSONALITY ASSIGNED THE RIGHTS, IN WHOLE OR
 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.

 S. 5959--D                          5
 
   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-
 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:

 S. 5959--D                          6
 
   I.  THE  DEPICTED  INDIVIDUAL IS GIVEN AT LEAST THREE BUSINESS DAYS TO
 REVIEW THE TERMS OF THE AGREEMENT BEFORE SIGNING IT; OR
   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.

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senate Bill S5959D

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Votes

Jul 22, 2020 - floor Vote

Floor Vote: Jul 22, 2020

Jul 21, 2020 - Finance committee Vote

Finance Committee Vote: Jul 21, 2020

Jul 21, 2020 - Rules committee Vote

Rules Committee Vote: Jul 21, 2020

Mar 10, 2020 - Judiciary committee Vote

Committee Vote: Mar 10, 2020

Bill Amendments

Co-Sponsors

S5959 - Details

S5959 - Summary

S5959 - Sponsor Memo

S5959 - Bill Text download pdf

Co-Sponsors

S5959A - Details

S5959A - Summary

S5959A - Sponsor Memo

S5959A - Bill Text download pdf

Co-Sponsors

S5959B - Details

S5959B - Summary

S5959B - Sponsor Memo

S5959B - Bill Text download pdf

Co-Sponsors

S5959C - Details

S5959C - Summary

S5959C - Sponsor Memo

S5959C - Bill Text download pdf

Co-Sponsors

S5959D (ACTIVE) - Details

S5959D (ACTIVE) - Summary

S5959D (ACTIVE) - Sponsor Memo

S5959D (ACTIVE) - Bill Text download pdf

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