Protect Name and Image Rights

Section 1. Section 50 of the civil rights law is renumbered section 50-f and a new section 50 is added to read as follows:

§ 50. Definitions. For the purposes of sections fifty-f, fifty-g, fifty-h, fifty-i and fifty-one of this article, the following terms shall have the following meanings:

1. "Deceased individual" means any individual, including his or her persona, who has died.

2. "Digital replica" means a computer-generated or electronic reproduction of a living or deceased individual's likeness or voice that realistically depicts the likeness or voice of the individual being portrayed. A digital replica is included within an individual's portrait.

3. "Secretary" means the secretary of state.

4. "Fund-raising" means an organized activity to solicit donations of money or other goods or services from persons or entities by an organization, company or public entity.

5. "Individual" means a natural person, living or dead.

6. "Name" means the actual or assumed name, or nickname, of a living or deceased individual that identifies that individual.

EXPLANATION--Matter in italics (underscored) is new; matter in brackets

[ ] is old law to be omitted.

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7. "Person" means any natural person, firm, association, partnership, corporation, company, syndicate, receiver, common law trust, conservator, statutory trust, or any other entity by whatever name known or however organized, formed or created, and includes not-for-profit corporations, associations, educational and religious institutions, political parties, and community, civic or other organizations.

8. "Persona" means, individually or collectively, the name, portrait or picture, voice, or signature of an individual.

9. "Right of privacy" means a personal right, which protects against the unauthorized use of a living individual's name, portrait or picture, voice, or signature for advertising purposes or purposes of trade without written consent, extinguished upon death.

10. "Right of publicity" means an independent property right, derived from and independent of the right of privacy, which protects the unauthorized use of a living or deceased individual's name, portrait or picture, voice, or signature for advertising purposes or purposes of trade without written consent.

11. "Signature" means a handwritten or otherwise legally binding form of an individual's name, written or authorized by that individual, which distinguishes the individual from all other individuals.

§ 2. Section 50-f of the civil rights law, as renumbered by section one of this act, is amended to read as follows:

§ 50-f. Right of privacy and right of publicity. [A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.] 1. For the purposes of the right of privacy, a living individual's persona shall not be used for advertising purposes or purposes of trade without obtaining the written consent of such person, or if a minor of his or her parent or guardian.

2. For the purposes of the right of publicity, a living or deceased individual's persona is personal property, freely transferable or descendible, in whole or in part by contract or by means of any trust or testamentary instrument, whether such contract, trust or testamentary instrument was entered into or executed before or after the effective date of this subdivision. Such right of publicity shall not be used for advertising purposes or the purposes of trade without obtaining the written consent of the individual, his or her successors or assigns as provided for in the provisions of this article pertaining to the right of publicity. In the case of a minor, written consent must first be obtained of his or her parent or guardian for the purposes of an exclusive 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 individual'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 publicity are freely transferable and descendible, in whole or in part, by the following:

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(a) contract;

(b) license;

(c) gift;

(d) trust;

(e) testamentary document. The rights shall vest in the persons entitled 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 testamentary instrument that provides for the disposition of the residue of the deceased individual's assets shall be effective to transfer the rights recognized under this article in accordance with the terms of that provision; and

(f) intestate succession. The right to publicity of an individual dying intestate shall be distributed under the laws of intestate succession, and the rights and remedies of this article may be exercised and enforced by a person or persons who possess at least a fifty-one percent interest of the individual's right of publicity. Such persons shall make a proportional accounting to, and shall act at all times in good faith with respect to, any other person in whom the rights being enforced have vested.

2. The rights established by the provisions of this article pertaining to the right of publicity shall also be freely transferable or descendible 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 associated with the deceased individual's right of publicity shall terminate.

4. Any person claiming to be a successor in interest to the right of publicity of a deceased individual under this article or a licensee of a deceased individual's right of publicity shall register that claim with the secretary on a form prescribed by the secretary and upon payment of a fee of one hundred dollars. The form shall include the name and date of death of the deceased individual, the name and address of the 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.

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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 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:

(a) for any violation that occurs prior to registration provided the claim is registered within six months following the individual's death; or

(b) for any subsequent publication, manufacturing, distribution, or sale or use in violation of a deceased individual's right of publicity once a claim has been registered.

8. If there is a right of publicity registration for a deceased individual, any person seeking to license the right of publicity for the individual shall have the right to rely upon such registration and posting 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 individual'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 fortyseven 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 claiming to be a successor in interest to a deceased individual's right of publicity has wrongfully registered such claim.

§ 50-i. No abrogation of rights and remedies. Nothing contained in the provisions of this article shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal or state law.

§ 4. Section 51 of the civil rights law, as amended by chapter 674 of the laws of 1995, is amended to read as follows:

§ 51. Action for injunction and for damages. 1. Applicability. The provisions of this article related to the right or privacy and the right of publicity apply to an act or event that occurs within New York.

2. Right of publicity exceptions. For purposes of the right of publicity, consent for use of another individual's persona shall not be required, except as otherwise provided in subdivisions three and four of this section, when used in connection with the following:

(a) news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign;

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(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 including a comment, criticism, parody, satire or a transformative creation of a work of authorship; or

(iii) an advertisement or commercial announcement for any of the works described in paragraph (a) of this subdivision or this paragraph; or

(c) fundraising purposes by not-for-profit radio and television stations licensed by the federal communications commission of the United States, or by not-for-profit advocacy organizations if the use is for commentary or criticism;

(d) use of the right of publicity of a deceased individual where the licensee or successor in interest has failed to register and post a claim of right under section fifty-h of this article, with the exception of the safe harbor period listed in subdivision seven of section fifty-h of this article, until such time as a claim of right has been registered and posted as required under such section.

(e) Nothing in this section relating to the right of publicity shall be deemed to abrogate or otherwise limit other rights or exceptions otherwise conferred by state and federal case law interpretations as to the applicability of sections fifty and fifty-one of this article made prior to the effective date of the chapter of the laws of two thousand eighteen which amended this section.