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This entry was published on 2021-06-04
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SECTION 50-F
Right of publicity
Civil Rights (CVR) CHAPTER 6, ARTICLE 5
§ 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
regularly engaged in acting, singing, dancing, or playing a musical
instrument.

b. "deceased personality" means any deceased natural person domiciled
in this state at the time of death whose name, voice, signature,
photograph, 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.

c. "digital replica" means a newly created, original,
computer-generated, 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 individual 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,
signature, 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
subdivision 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
specified in subdivision four of this section if the person making such
use provides a conspicuous disclaimer in the credits of the scripted
audiovisual work, and in any related advertisement in which the digital
replica appears, stating that the use of the digital replica has not
been authorized by the person or persons specified in subdivision four
of this section.

c. In any action brought under this section:

i. the person who violated the section shall be liable to the injured
party or parties in an amount equal to the greater of two thousand
dollars or the compensatory damages suffered by the injured party or
parties, as a result of the unauthorized use, and any profits from the
unauthorized use that are attributable to such use and are not taken
into account in computing the compensatory damages.

ii. in establishing profits under this subdivision, the injured party
or parties shall be required to present proof only of the gross revenue
attributable to the unauthorized use, and the person who violated this
section is required to prove his or her deductible expenses.

iii. punitive damages may also be awarded to the injured party or
parties.

d. For purposes of this subdivision:

i. it shall not be a violation of paragraph a of this subdivision if
the work is a play, book, magazine, newspaper, or other literary work;
musical work or composition; work of art or other visual work; work of
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
political 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
merchandise, 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,
freely 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
testamentary instrument that provides for the disposition of the residue
of the deceased personality's assets shall be effective to transfer the
rights recognized under this section in accordance with the terms of
that provision. The rights established by this section shall also be
freely transferable or descendible by contract, license, gift, trust, or
any other testamentary instrument by any subsequent owner of the
deceased personality's rights as recognized by this section. Nothing in
this section shall be construed to render invalid or unenforceable any
contract entered into by a deceased personality during his or her
lifetime by which the deceased personality assigned the rights, in whole
or in part, to use his or her name, voice, signature, photograph, or
likeness.

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
subdivision 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,
newspapers, magazines, radio and television networks and stations, cable
television systems, billboards, and transit advertisements, by whom any
advertisement or solicitation in violation of this section is published
or disseminated, unless it is established that the owners or employees
had actual knowledge by prior notification of the unauthorized use of
the deceased performer's digital replica or deceased personality's name,
voice, signature, photograph, or likeness as prohibited by this section.

10. The provisions of this section are in addition to, but shall not
supersede, any other rights or remedies available in law or equity.

11. This section shall apply to the adjudication of liability and the
imposition of any damages or other remedies in cases in which the
liability, damages, and other remedies arise from acts occurring
directly 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.