Recent Right of Publicity Legislation

Transcription

1 Maherin Gangat Media Law Resource Center Recent Right of Publicity Legislation Successful Efforts Washington In March 2008, the Washington passed an amendment to the state s right of publicity statute, which was enacted in Below is a summary of the amendment (the full bill may be accessed at S.SL.pdf): The amendment provides that the right in the use of one s name, voice, signature, photograph, or likeness granted under the statute exists even if (1) the person died before or after the statute was first enacted and (2) the instrument transferring or passing on rights was entered into before or after the statute was first enacted. It provides that the right continues following the person s death, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right. A deceased individual is one who, regardless of the individual s place of domicile, residence, or citizenship at the time of death or otherwise has died within ten years before January 1, 1998, or thereafter. Hawaii In July 2009, Hawaii passed a right of publicity statute applicable to living and deceased persons, regardless of domicile (right terminates 70 years after death). Below is a summary of the legislation (the full bill may be accessed at sed).pdf): The legislation prohibits the use of a person s name, voice, signature, or likeness, on or in goods, merchandise, or services entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund-raising or solicitation of donations without express or implied consent of the owner of the right. It provides that the right of publicity continues following the person s death, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property. The legislation contains the following exemptions:

2 o o o Consent is not required in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including without limitation, comment, criticism, satire, and parody relating thereto. Consent is not required for uses in: (1) Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies; (2) A literary work, theatrical work, musical composition, sound recording, radio program, motion picture, television program or other audiovisual work, magazine article, news story, public affairs report, or sports broadcast or account, or materials related to a political campaign, when the use does not inaccurately claim or state an endorsement by the individual or personality. (3) An advertisement or commercial announcement for the above uses. The legislation is not applicable to the distribution, promotion, transfer, or license of a photograph or other material containing an individual or personality s name, voice, signature, photograph, or likeness to a third party for use in a manner which is lawful under this chapter, or to a third party for further distribution, promotion, transfer, or license for use in a manner which is lawful under this chapter. In January 2010, an amendment to the statute was passed that provides a means of registering publicity rights. (It may be accessed at Unsuccessful Efforts New York Since 2007, various bills have been introduced in the New York Sate Legislature that would amend the state s existing right of privacy statute by creating a right of publicity for deceased persons. The current statute, dating back to 1903, is limited to living persons. The most recent legislation, S8373-A, would prohibit the use for advertising purposes or for the purposes of trade of the persona defined as the name, portrait, voice and/or picture of any person who died 70 years before the effective date of the legislation or who dies on or after such effective date without the written permission of such person s heirs, estate or licensees. These rights would be granted retroactively to persons who are already dead and would last for 70 years after death. The bill contains an exemption for expressive works and advertising for such works. The legislation failed to move out of the Senate Rules Committee this term. Existing statute: Civil Rights; Right of Privacy 2

3 50. Right of privacy. 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. 51. Action for injunction and for damages. Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may 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, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use and if the defendant shall have knowingly used such person's name, portrait, picture or voice in such manner as is forbidden or declared to be unlawful by section fifty of this article, the jury, in its discretion, may award exemplary damages. But nothing contained in this article shall be so construed as to prevent any person, firm or corporation from selling or otherwise transferring any material containing such name, portrait, picture or voice in whatever medium to any user of such name, portrait, picture or voice, 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 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 any manufacturer or dealer in connection with the goods, wares and merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith; or from using the name, portrait, picture or voice of any author, composer or artist in connection with his literary, musical or artistic productions which he has sold or disposed of with such name, portrait, picture or voice used in connection therewith. Nothing contained in this section shall be construed to prohibit the copyright owner of a sound recording from disposing of, dealing in, licensing or selling that sound recording to any party, if the right to dispose of, deal in, license or sell such sound recording has been conferred by contract or other written document by such living person or the holder of such right. Nothing contained in the foregoing sentence shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal law or state law. Proposed legislation: S8373-A (amendment introduced June 25, 2010) Section 1. The civil rights law is amended by adding a new section 50-f to read as follows: 50-f. Use of the persona of a deceased personality prohibited. 1. No person, firm or corporation shall use for advertising purposes or for the purposes of trade in this state, the persona of any deceased personality without having first obtained the written consent of the person or persons identified in subdivision fourteen of this section who have registered their claim of rights pursuant to subdivision seventeen of this section and who own more than fifty percent of the rights in the deceased personality s persona, or as otherwise provided in this section. 3

4 2. As used in this section, the following terms shall have the following meanings: A. Persona means the name, including legal and professional name, portrait, voice and/or picture of a natural person. B. Deceased personality means any natural person who: (1) died a domiciliary of the state of New York on or after, or within seventy years prior to, the effective date of this section; and (2) whose persona was of commercial value at the time of his or her death, whether or not the individual used his or her persona for advertising purposes or for the purposes of trade during his or her lifetime. 3. Nothing in this section shall be read as prohibiting the use of a deceased personality s persona that occurs after the expiration of seventy years following the death of that deceased personality. Nor shall anything in this section be read as creating liability or giving rise to any remedy for any actions or conduct involving the use of a deceased personality s persona that occurred prior to the effective date of this section. 4. The written consent specified in subdivision one of this section shall not be required in connection with the use of a deceased personality s persona for other than advertising purposes or the purposes of trade. 5. For purposes of this section, the following informational or expressive works, regardless of length or format, appearing in any medium now known or hereafter devised, shall not be considered to have used a deceased personality s persona for advertising purposes or for the purposes of trade, so long as such works do not constitute an advertisement, endorsement or solicitation for the sale or purchase of a product, article of merchandise, good or service: A. A play, book, story, graphic novel, or other literary or theatrical work; B. An article, editorial, commentary, magazine, newspaper, newsletter or other periodical; C. A musical composition; D. A radio program, sound recording, or other similar audio work; E. A documentary, motion picture, television program or other similar audiovisual work; F. A photograph or poster, or reproduction thereof; G. An original work of art, art reproduction, or other similar work; H. A work of political or newsworthy value; I. A news, public affairs, public interest or sports broadcast or account; J. Any work used in connection with any political campaign; K. A calendar or greeting card; L. A tee-shirt where the portrait or picture of a deceased personality appears on the tee-shirt itself, and not as part of any hang tag or other label; M. Any other editorial, artistic or expressive work; or N. Any advertisement, promotion or commercial announcement for any of the preceding works. In the case of all works identified in paragraphs A through N of this subdivision, the written consent specified in subdivision one of this section shall not be required. 6. No person or entity possessing rights or title, however held, in a work encompassing any aspect or aspects of a deceased personality s persona shall be rendered liable under this section for licensing or otherwise authorizing the use of such work by a third party, or for displaying images of such work as available for license or similar use by a third party, so long as such person or entity does not (i) know and intend that the third party plans to use such work to engage in an unauthorized use of the deceased personality s persona as prohibited by this section, or (ii) does not warrant or represent that the third party may use the licensed or authorized aspect of the deceased personality s persona for advertising purposes or for the 4

5 purposes of trade without first obtaining the written consent required by subdivision one of this section. In the event that such third party licensee wishes to use any aspect of a deceased personality s persona encompassed in such work for advertising purposes or for the purposes of trade, without the prior knowledge and intent of the licensing or authorizing person or entity, it shall be the sole responsibility of the third party licensee to obtain the written consent required by subdivision one of this section. 7. Unless otherwise agreed to in writing, only the persons or entities who actually authorize, manufacture or otherwise create an advertisement, product, article of merchandise, good or service embodying a deceased personality s persona shall be responsible for obtaining the written consent required by subdivision one of this section; a mere distributor or transmitter of such an advertisement, product, article of merchandise, good or service shall not be liable for any violation of this section, unless said distributor or transmitter intentionally engages in an unauthorized use of the deceased personality s persona as prohibited by this section, knowing that such use requires consent. 8. This section shall not prohibit the use of a deceased personality s persona in promotional material or an advertisement for a news reporting or an entertainment medium that: A. Uses all or part of a past or future edition of the medium s own broadcast or publication; and B. Does not convey or cannot reasonably be understood to represent that the deceased personality endorses the news reporting or entertainment medium. 9. This section shall not prohibit the use of a deceased personality s persona in promotional material or an advertisement for an aggregator of news reporting and/or entertainment content that: A. Uses all or a part of the content of any news medium or entertainment medium available to the aggregator s customers; and B. Does not convey or cannot reasonably be understood to represent that the deceased personality endorses the news and/or entertainment aggregator. As used in this subdivision, the term aggregator means a party who receives content not of its own creation from others which it transmits or otherwise provides to others. 10. This section shall not prohibit the use of a deceased personality s persona to accurately identify that deceased personality as the author of or contributor to a work or a performer of a recorded performance, under circumstances in which the work or recorded performance is otherwise lawfully reproduced, exhibited, or broadcast. 11. A deceased personality 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 is entered into or executed before or after the effective date of this section, by the deceased personality or by any subsequent owner of the deceased personality s persona as recognized by this section. 12. The rights recognized under this section are expressly made retroactive and shall be deemed to have existed at the time of death of any deceased personality who died within seventy years prior to the effective date of this section and, except where such rights were passed or assigned prior to such deceased personality s death by means of any contract or trust instrument, shall be deemed to have vested in the person or persons entitled to these rights under the testamentary instrument of the deceased personality effective as of the date of his or her death. In the absence of a transfer elsewhere in a testamentary instrument of the persona of a deceased personality recognized under this section, a provision in the testamentary instrument that provides for the 5

6 disposition of the residue of the deceased personality s assets shall be effective to transfer the deceased personality s persona in accordance with the terms of that provision. 13. If no transfer of some or all of the rights recognized under this section has occurred in accordance with subdivision eleven or twelve of this section, then such rights shall be deemed to have passed in accordance with section of the estates, powers and trusts law; provided, however, that if there are no surviving natural persons to whom said rights pass by intestate succession, then said rights shall terminate. 14. The written consent required by this section shall be exercisable by the person or persons who collectively own more than fifty percent of the rights in the deceased personality s persona in accordance with subdivisions eleven, twelve and thirteen of this section. Reliance upon such written consent provided by those who have registered a claim of rights under subdivision seventeen of this section shall be a complete defense in any action brought under this section. 15. Notwithstanding any provision of this section to the contrary, if an action was taken prior to the effective date of this section to exercise a deceased personality s persona rights, under the laws of any other state, by one or more living spouse, children or grandchildren (other than a person disinherited by the deceased personality in a testamentary instrument), and the exercise of those persona rights was not challenged successfully in a court action by a person described in subdivision eleven of this section, that exercise shall not be affected by such subdivision. In such a case, the persona rights that would otherwise vest in one or more persons described in subdivision eleven of this section shall vest solely in the spouse, children or grandchildren described herein (other than a person disinherited by the deceased personality in a testamentary instrument) for all future purposes. 16. The remedies for any violation of this section shall be limited to those specified in section fifty-one of this article, and the exceptions to liability specified in section fifty-one of this article shall likewise be applicable to any asserted violation of this section. 17. Any person or persons claiming to be a successor-in-interest to the rights in a deceased personality s persona under this section, or a licensee thereof, may register a verified claim with the secretary of state of the state of New York on a form prescribed by such secretary, which 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. As soon as shall be practicable, the secretary of state shall create a system which allows, upon receipt and after filing of any document under this section, such secretary to 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 department of state website, provided that instead of the name and address of the claimant, the claimant may request that the contact listed on the website be the designated representative or agent. Claims registered under this subdivision shall be public records; such registration shall be prima facie evidence of the validity of the registration and of the facts stated in the registration. The cost for filing shall be one hundred dollars. The secretary of state shall promulgate regulations for carrying out the provisions of this subdivision. 18. No successor-in-interest to the rights of a deceased personality under this section, nor any licensee thereof, may file or maintain an action for a use prohibited by this section that occurs before the successor-in-interest or licensee registers a claim of rights under subdivision seventeen of this section. 19. If no claim of rights to the persona of a deceased personality has been validly registered under subdivision seventeen of this section by any person or persons collectively owning more 6

7 than fifty percent of the rights, any person wishing to use such deceased personality s persona, including for advertising purposes or for the purposes of trade, may do so without violating this section. 20. Any action to enforce this section shall be subject to the one-year limitation period set forth in subdivision three of section two hundred fifteen of the civil practice law and rules. 2. If any clause, sentence, paragraph, section or part of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, section or part thereof directly involved in the controversy in which such judgment shall have been rendered. 3. This act shall take effect one year after it shall have become a law. Indiana In January 2010, a bill (HB1335) was introduced in the Indiana Legislature that would amend the state s existing right of publicity statute by creating a descendible right of publicity that applies retroactively and regardless of the personality s domicile (if living or at the time of death) and whether the personality s domicile or state of residency recognizes a similar right of publicity. Under the existing statute, which was passed in 1994, personality is defined as a living or deceased person whose (1) name; (2) voice; (3) signature; (4) photograph; (5) image; (6) likeness; (7) distinctive appearance; (8) gesture; or (9) mannerisms has commercial value, whether or not the person uses or authorizes the use of the person s rights of publicity for a commercial purpose during the person s lifetime. An amended version of the bill passed the House of Representatives, which expressly provided that the statute would apply retroactively to a cause of action commenced after June 30, 1994, regardless of when the cause of action arose. It also provided that if a deceased person died testate or intestate before July 1, 1994, the rights recognized by the statute are deemed to be in the possession of the current rights holder, and that such rights are expressly made retroactive, including to those deceased personalities who died before July 2, The language stating that the statute applied to a personality regardless of the personality s domicile during his/her lifetime or at the time of his/her death and whether the law of the personality s domicile, residence or state of citizenship recognizes a right of publicity (including at the time of the personality s death) was removed from the bill that passed the House, but the proposal was referred to an interim study committee. The bill failed to move out of the Senate Committee on Rules and Legislative Procedure. Proposed legislation: HB1335 (proposed language appears in bold) Sec. 1. (a) This chapter applies as follows: (1) To codify the common law in existence before July 1, 1993, this chapter applies to a 7

8 cause of action commenced after June 30, 1993, regardless of when the cause of action arose. To this extent, this chapter applies retroactively, but in all other respects this chapter applies prospectively. (2) This chapter applies to a personality regardless of: (A) the personality's: (i) domicile; or (ii) domicile at the time of the personality's death; and (B) whether at any time, including at the time of a personality's death, the law of the: (i) personality's domicile; (ii) personality's residence; or (iii) state where the personality is a citizen; recognizes property rights that are similar or identical to the property rights recognized under this chapter. (3) This chapter applies to an act or event that occurs within Indiana, regardless of a personality's domicile, residence, or citizenship. (b) This chapter does not affect rights and privileges recognized under any other law that apply to a news reporting or an entertainment medium. (c) This chapter does not apply to the following: (1) The use of a personality's name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in any of the following: (A) Literary works, theatrical works, musical compositions, film, radio, or television programs. (B) Material that has political or newsworthy value. (C) Original works of fine art. (D) Promotional material or an advertisement for a news reporting or an entertainment medium that: (i) uses all or part of a past edition of the medium's own broadcast or publication; and (ii) does not convey or reasonably suggest that a personality endorses the news reporting or entertainment medium. (E) An advertisement or commercial announcement for a use described in this subdivision. (2) The use of a personality's name to truthfully identify the personality as: (A) the author of a written work; or (B) a performer of a recorded performance; under circumstances in which the written work or recorded performance is otherwise rightfully reproduced, exhibited, or broadcast. (3) The use of a personality's: (A) name; (B) voice; (C) signature; (D) photograph; (E) image; (F) likeness; (G) distinctive appearance; (H) gestures; or 8

9 (I) mannerisms; in connection with the broadcast or reporting of an event or a topic of general or public interest. Sec. 16. (a) The rights recognized under this chapter are property rights, freely transferable and descendible, in whole or in part, by the following: (1) Contract. (2) License. (3) Gift. (4) Trust. (5) Testamentary document. (6) Operation of the laws of intestate succession applicable to the state administering the estate and property of an intestate deceased personality, regardless of whether the deceased personality's domiciliary state recognizes the property rights set forth under this chapter. (b) If a personality died: (1) testate before July 1, 1993, the rights recognized under this chapter are deemed to be in the possession of the current holder of the interests of the beneficiary of the residuary clause of the testamentary instrument as if the rights had been: (A) distributed according to the testamentary instrument; and (B) transferred according to this section; and (2) intestate before July 1, 1993, the rights recognized under this chapter are deemed to be in the possession of the current holder of the interests as if the estate had been: (A) distributed according to the law where the estate was probated; and (B) transferred according to this section. (c) If a testamentary instrument does not contain an express transfer of a deceased personality's rights of publicity, a provision in the testamentary instrument that provides for the disposition of the residue of the deceased personality's assets is effective to transfer the rights recognized under this chapter in accordance with the terms of the provision. (d) The rights recognized by this section are expressly made retroactive, including to those deceased personalities who died before July 2, 1993, regardless of whether the transfer was made by: (1) intestate succession before July 2, 1993; or (2) contract, license, gift, trust, or other testamentary instrument executed before July 2, (e) The rights established by this section are 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 may be construed to make a contract: (1) entered into by a deceased personality during the personality's lifetime; and (2) by which the deceased personality assigned the rights, in whole or in part, to use the personality's name, voice, signature, photograph, or likeness; invalid or unenforceable, regardless of whether the contract was entered into before, on, or after July 1, Michigan 9

10 A right of publicity bill, HB5964, was introduced in the Michigan Legislature in March 2010 that would create a right of publicity for living and deceased persons. Below is a summary of the bill s main provisions (the full bill may be accessed at pdf): The bill would prohibit the use for a commercial purpose of the attributes defined as the name, voice, signature, image, or likeness of a personality during the person s lifetime or within 50 years after death without the consent of such person or a transferee. Commercial use is defined as the use of 1 or more of a personality s attributes on or in a product or good, or for the purpose of advertising, selling, or soliciting purchases of a product, good or service. The bill defines personality as a living or deceased individual, 1 or more of whose attributes have commercial value, whether or not the individual uses or authorizes the use of his or her right of publicity for a commercial purpose during the individual s lifetime. The bill contains an exemption for expressive works and advertising for such works: Consent is not required for the use of 1 or more of a personality's attributes in any of the following works in any medium now known or hereafter used or devised, regardless of length or format: (a) A motion picture, television program, audiovisual work, documentary, book, play, story, graphic novel, radio or other audio program, musical composition, or sound recording, other than an advertisement that is not exempt under subsection (3). (b) A video game. (c) An original work of art. (d) A magazine, newspaper, article, newsletter, periodical, sports or news broadcast, or other work of political, informational, or newsworthy value. (e) An editorial, fictional, nonfictional, artistic, or other expressive work. The legislation failed to move out of the House Judiciary Committee. Massachusetts A right of publicity bill, S1800, was introduced in the Massachusetts Legislature in 2009 that would create a right of publicity for living and deceased persons (right terminates 75 years after death). Below is a summary of the bill s main provisions (the full bill may be accessed at As applied to the deceased, the right terminates upon proof that no successor/licensee has made commercial use of the person s identity name, likeness, voice, signature, or 10

11 any distinctive appearance, gesture, or mannerism for five continuous years after the person s death. Commercial use is defined as (1) the use of an individual s identity in any medium and in any manner in connection with (i) the offering for sale, sale, promotion, or advertising of a product, merchandise, good, or service, (ii) fundraising, or (iii) other purposes of trade. The definition of "commercial use" provides exceptions: it is not a commercial use of any individual s identity (i) to publish, print, display, or use the individual s identity as part of any bona fide news report or commentary having a legitimate public interest or as part of an artistic or expressive work, such as a live performance, work of fine art, literary work, theatrical work, musical work, film, television, radio, or the like, except where the use is directly connected with advertising or another commercial use as defined in (1), above; (ii) to use a photograph depicting the individual as a member of the public where the individual is not named or similarly identified in connection with the use of the photograph; or (iii) to provide a medium through which a commercial use is made, unless it is established that the person had knowledge of the commercial use or unless the use was intended to promote the medium itself. The legislation failed to move out of the Judiciary Committee. 11