§ 50-F — Right of publicity

§ 50-f. Right of publicity. 1. For purposes of this section:\n a. "deceased performer" means a deceased personality domiciled in this\nstate at the time of death who, for gain or livelihood, was regularly\nengaged in acting, singing, dancing, or playing a musical instrument.\n b. "deceased personality" means any deceased natural person domiciled\nin this state at the time of death whose name, voice, signature,\nphotograph, or likeness has commercial value at the time of such natural\nperson's death, or because of such natural person's death, whether or\nnot during the lifetime of that natural person the person used such\nnatural person's name, voice, signature, photograph, or likeness on or\nin products, merchandise, or goods, or for purposes of advertising or\nselling, or solicitation of purchase of, products, merchandise, goods,\nor services.\n c. "digital replica" means a newly created, computer-generated, highly\nrealistic electronic representation that is readily identifiable as the\nvoice or visual likeness of an individual that is embodied in a sound\nrecording, image, audiovisual work, including an audiovisual work that\ndoes not have any accompanying sounds, or transmission in which: (i) the\nactual individual did not actually perform or appear; or (ii) the actual\nindividual did perform or appear, but the fundamental character of the\nperformance or appearance has been materially altered. A digital replica\ndoes not include the electronic reproduction, use of a sample of one\nsound recording or audiovisual work into another, remixing, mastering,\nor digital remastering of a sound recording or audiovisual work\nauthorized by the copyright holder.\n d. "sound recordings" are works that result from the fixation of a\nseries of musical, spoken, or other sounds, but not including the sounds\naccompanying a motion picture or other audiovisual work, regardless of\nthe nature of the material objects, such as disks, tapes, or other\nphonorecords, in which they are embodied.\n 2. a. Any person who uses a deceased personality's name, voice,\nsignature, photograph, or likeness, in any manner, on or in products,\nmerchandise, or goods, or for purposes of advertising or selling, or\nsoliciting purchases of, products, merchandise, goods, or services,\nwithout prior consent from the person or persons specified in\nsubdivision four of this section, shall be liable for any damages\nsustained by the person or persons injured as a result thereof.\n b. Any person who uses a deceased performer's digital replica in an\naudiovisual work, sound recording, or for the live performance of a\nmusical work, with knowledge that the use was of a digital replica and\nwas not authorized by the applicable right holder, shall be liable for\nany damages sustained by the person or persons injured as a result\nthereof if the use occurs without prior consent from the person or\npersons in subdivision four of this section.\n c. In any action brought under this section:\n i. the person who violated the section shall be liable to the injured\nparty or parties in an amount equal to the greater of two thousand\ndollars or the compensatory damages suffered by the injured party or\nparties, as a result of the unauthorized use, and any profits from the\nunauthorized use that are attributable to such use and are not taken\ninto account in computing the compensatory damages.\n ii. in establishing profits under this subdivision, the injured party\nor parties shall be required to present proof only of the gross revenue\nattributable to the unauthorized use, and the person who violated this\nsection is required to prove such person's deductible expenses.\n iii. punitive damages may also be awarded to the injured party or\nparties.\n d. For purposes of this subdivision:\n i. it shall not be a violation of paragraph a of this subdivision if\nthe work is a play, book, magazine, newspaper, or other literary work;\nmusical work or composition; work of art or other visual work; work of\npolitical, public interest, educational or newsworthy value, including\ncomment, criticism, parody or satire; audio or audiovisual work, radio\nor television program, if it is fictional or nonfictional entertainment;\nor an advertisement or commercial announcement for any of the foregoing\nworks.\n ii. it shall not be a violation of paragraph b of this subdivision if\nthe work is of parody, satire, commentary, or criticism; works of\npolitical or newsworthy value, or similar works, such as documentaries,\ndocudramas, or historical or biographical works, including some degree\nof fictionalization; a representation of a deceased performer as\nthemself, including some degree of fictionalization, except in a live\nperformance of a musical work; de minimis or incidental; or an\nadvertisement or commercial announcement for any of the foregoing works.\n iii. it shall not be a violation of this section if the use of a name,\nvoice, signature, photograph, or likeness occurs in connection with any\nnews, public affairs, or sports program or account, regardless of\nformat, medium or means of transmission, or any political campaign.\n iv. it shall not be a violation of this section if the use is of a\nname, voice, signature, photograph, or likeness in a commercial medium\nsolely because the material containing the use is commercially sponsored\nor contains paid advertising or product placement, or includes within it\na use in connection with a product, article of merchandise, good, or\nservice. Rather, it shall be a question of fact whether or not the use\nof the deceased personality's name, voice, signature, photograph, or\nlikeness was so directly connected with the commercial sponsorship or\nwith the paid advertising or product placement as to constitute a use\nfor which consent is required under this subdivision.\n v. works identified pursuant to this paragraph shall not violate this\nsection, regardless of the medium or means of transmission.\n e. In relation to a violation of paragraph a of this subdivision, if a\nwork that is protected under paragraph d of this subdivision includes\nwithin it a use in connection with a product, article of merchandise,\ngood, or service, this use shall not be exempt under paragraph d of this\nsubdivision, notwithstanding the unprotected use's inclusion in a work\notherwise exempt under paragraph d of this subdivision, if the claimant\nproves that this use is so directly connected with a product, article of\nmerchandise, good, or service as to constitute an act of advertising,\nselling, or soliciting purchases of that product, article of\nmerchandise, good, or service by the deceased personality without prior\nconsent for the use under paragraph a of this subdivision from the\nperson or persons specified in subdivision four of this section.\n 3. The rights recognized under this section are property rights,\nfreely transferable or descendible, in whole or in part, by contract,\nlicense, gift, or by means of any trust or any other testamentary\ninstrument. In the absence of an express transfer in a testamentary\ninstrument of the deceased personality's rights in such deceased\npersonality's name, voice, signature, photograph, or likeness, a\nprovision in the testamentary instrument that provides for the\ndisposition of the residue of the deceased personality's assets shall be\neffective to transfer the rights recognized under this section in\naccordance with the terms of that provision. The rights established by\nthis section shall also be freely transferable or descendible by\ncontract, license, gift, trust, or any other testamentary instrument by\nany subsequent owner of the deceased personality's rights as recognized\nby this section. Nothing in this section shall be construed to render\ninvalid or unenforceable any contract entered into by a deceased\npersonality during such deceased personality's lifetime by which the\ndeceased personality assigned the rights, in whole or in part, to use\nsuch deceased personality's name, voice, signature, photograph, or\nlikeness.\n 4. The consent required by this section shall be exercisable by the\nperson or persons to whom the right of consent, or portion thereof, has\nbeen transferred in accordance with subdivision three of this section,\nor if no transfer has occurred, then by the person or persons to whom\nthe right of consent, or portion thereof, has passed in accordance with\nsubdivision five of this section.\n 5. Subject to subdivisions three and four of this section, the rights\nunder this section of an individual dying intestate shall be distributed\nunder the laws of intestate succession, and the rights and remedies of\nthis article may be exercised and enforced by a person or persons who\npossess at least a fifty-one percent interest of the individual's rights\nunder this section. Such persons shall make a proportional accounting\nto, and shall act at all times in good faith with respect to, any other\nperson in whom the rights being enforced have vested.\n 6. If any deceased personality does not transfer such deceased\npersonality's rights under this section by contract, or by means of a\ntrust or testamentary instrument, and there are no surviving persons as\ndescribed in subdivision five of this section, then the rights set forth\nin subdivision two of this section shall terminate.\n 7. a. Any person claiming to be a successor in interest to the rights\nof a deceased personality under this section or a licensee thereof may\nregister that claim with the secretary of state on a form prescribed by\nthe secretary of state and upon payment of a fee, which the secretary of\nstate shall set by rule. The form shall be verified and shall include\nthe name and date of death of the deceased personality, the name and\naddress of the claimant, the basis of the claim, and the rights claimed.\nA successor in interest to the rights of a deceased personality under\nthis section or a licensee thereof shall not have a cause of action for\na use prohibited by this section that occurs before the successor in\ninterest or licensee registers a claim of the rights.\n b. Upon receipt and after filing of any document under this section,\nthe secretary of state shall post the document along with the entire\nregistry of persons claiming to be a successor in interest to the rights\nof a deceased personality or a registered licensee under this section\nupon the secretary of state's internet website.\n c. Claims registered under this subdivision shall be public records.\n 8. An action shall not be brought under this section by reason of any\nuse of a deceased personality's name, voice, signature, photograph, or\nlikeness occurring after the expiration of forty years after the death\nof the deceased personality.\n 9. Nothing in this section shall apply to the owners or employees of\nany medium used for advertising, including, but not limited to,\nnewspapers, magazines, radio and television networks and stations,\nstreaming services, cable television systems, billboards, and transit\nadvertisements, by whom any advertisement or solicitation in violation\nof this section is published or disseminated, unless it is established\nthat the owners or employees had actual knowledge by prior notification\nof the unauthorized use of the deceased performer's digital replica or\ndeceased personality's name, voice, signature, photograph, or likeness\nas prohibited by this section.\n 10. Nothing in this section shall apply to a person that offers a\nservice that displays, offers for sale or license, sells or licenses a\nwork of art or other visual work, or audiovisual work, to a user,\nprovided the terms of such sale or license do not authorize such user to\nengage in acts that constitute a violation of this section, unless it is\nestablished that the person received a notice from the successor in\ninterest of the deceased performer's digital replica rights based on a\ngood faith belief that the display, offer for sale or license of the\ndigital replica on the service is not authorized by the applicable right\nholder or the law, and the person has not removed the work containing\nthe digital replica as soon as is technically and practically feasible.\n 11. The provisions of this section are in addition to, but shall not\nsupersede, any other rights or remedies available in law or equity.\n 12. This section shall apply to the adjudication of liability and the\nimposition of any damages or other remedies in cases in which the\nliability, damages, and other remedies arise from acts occurring\ndirectly in this state. For purposes of this section, acts giving rise\nto liability shall be limited to the use, on or in products,\nmerchandise, goods, or services, or the advertising or selling, or\nsoliciting purchases of, products, merchandise, goods, or services\nprohibited by this section.\n 13. Nothing in this section shall be construed to limit, or to\nenlarge, the protections that 47 U.S.C. § 230 confers on an interactive\ncomputer service for content provided by another information content\nprovider, as such terms are defined in 47 U.S.C. § 230.\n