Right of Publicity

Right of Publicity

Section 1. Amend the Civil Rights Law by adding thereto a new subdivision 50-f, to read as follows:

1. No person, firm or corporation shall use for advertising purposes, or for the purposes of trade, the persona of any deceased

personality without having first obtained the written consent of the person or persons identified in subdivision 13 of this section.

2. As used in this section, the following terms shall have the following meanings:

(a) “Persona” means the name, portrait, voice, picture and/or likeness of a natural person.

(b) “Deceased personality” means any natural person whose persona had commercial value prior to his or her death. A “deceased personality” shall include any such natural person who died on or after, or within 70 years prior to, the effective date of this section.

3. Nothing in this section shall be read as prohibiting the use of a deceased personality’s persona that occurs after the expiration of 70 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.

3a. Notwithstanding any contrary provision of this section, the creator or author of a photograph or audiovisual image of a deceased personality created prior to the effective date of this section that is the property of such creator or author or the successor in interest thereto at the time of the effective date of this section, shall retain inviolate all rights and title, however held, to that photograph or image, including the right to license, sublicense, assign, transfer, sell, or otherwise dispose of such rights and title, and any other right, power or interest which such creator or author or successor in interest possessed prior to the effective date of this section. Such rights shall include the rights of a third party entity to enter into an agreement with such creator or author or successor in interest for licensure of the use of such photograph or audiovisual image, or to receive by assignment, transfer, or sale the rights and title to such photograph or audiovisual image of a deceased personality to the same extent which such third party entity would have possessed prior to the effective date of this section and such creator, author, successor in interest or third party are in no manner required to obtain permission to utilize those images and photographs for commercial purposes from the persons identified in subdivision 13 of this section.

4. Nothing in this section shall be construed in a manner that violates the freedom of speech provisions contained in the First Amendment to the United States Constitution or Article I, Section 8 of the New York State Constitution.

5. For purposes of this section, a play, book, magazine, newspaper, musical composition, motion picture, sound recording, radio or television program, other audiovisual work, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works shall not be considered to have used a deceased personality’s persona for advertising purposes or for the purposes of trade, if such work is fictional or nonfictional entertainment or any combination thereof, or a dramatic, artistic, literary or musical work. [MPAA CHANGES]

6. This section shall not prohibit the use of a deceased personality’s persona for other than advertising purposes or the purposes of trade, including in connection with any news, public affairs, or sports broadcast or account, or in connection with any political campaign.

7. 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 edition of the medium’s own broadcast or publication; and (b) does not convey or reasonably suggest that the deceased personality endorses the news reporting or entertainment medium.

8. This section shall not prohibit the use of a deceased personality’s name to accurately identify that deceased personality as the author of or contributor to a written work or a performer of a recorded performance, under circumstances in which the written work or recorded performance is otherwise lawfully reproduced, exhibited, or broadcast.

9. No 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 ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, shall be held liable under this section unless said owners or employees had knowledge of the unauthorized use of the deceased personality’s persona as prohibited by this section.

10. 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.

11. 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 70 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 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.

12. If no transfer of some or all of the rights recognized under this section has occurred in accordance with subdivisions 10 or 11 hereof, then such rights shall be deemed to have passed in accordance with the laws of intestate succession of the jurisdiction in which the deceased personality was domiciled at the time of his or her deathSection 4-1.1 of the New York 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.

13. 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 10-12 of this section.

14. 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 10, that exercise shall not be affected by subdivision 10. In such a case, the persona rights that would otherwise vest in one or more persons described in subdivision 10 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.

15. 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.

16. Any action to enforce this section shall be subject to the one-year limitations period set forth in section 215.3 of the New York Civil Practice Law and Rules.

Section 2. Severability. If any clause, sentence, paragraph, section orpart of this act shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidatethe remainder thereof, but shall be confined in its operation to theclause, sentence, paragraph, section or part thereof directly involvedin the controversy in which such judgment shall have been rendered.

Section 3, Effective Date. This act shall take effect January 1 next succeeding enactment.