New York S8391 (Relates to the right of publicity)

Summary

Amends the New York civil rights law to define a "digital replica" as a computer-generated representation that is identifiable as the voice or likeness of an individual, used in various audio or visual works.

Prohibits unauthorized use of a deceased personality's likeness, requiring prior consent for commercial use or the use of digital replicas, with liability for damages.

Specifies exemptions for certain uses in plays, books, musical works, and other artistic or educational content.

Clarifies that rights in a deceased personality's likeness are private, transferrable, and can be assigned by contract or testamentary instruments.

Requires media outlets to avoid unauthorized use unless notified beforehand.

Allows exemptions for certain service providers unless they receive specific notice of unauthorized use.

Outlines damages, including compensatory and potentially punitive, for unauthorized use.

Defines "digital replica" as a highly realistic computer-generated representation of an individual's likeness or voice.

AN ACT to amend the civil rights law, in relation to the right of publicity

THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

Section 1. Subdivisions 1, 2, 3, 6, 9 and 10 of section 50-f of the civil rights law, subdivisions 1, 2, 3, 6 and 9 as added by chapter 304 of the laws of 2020 and subparagraph (v) of paragraph d of subdivision 2 and subdivision 10 as added by chapter 709 of the laws of 2022, are amended to read as follows:

1. For purposes of this section: a. "deceased performer" means a deceased PERSONALITY 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, photo- graph, or likeness has commercial value at the time of SUCH NATURAL PERSON'S death, or because of SUCH NATURAL PERSON'S death, whether or not during the lifetime of that natural person the person used SUCH NATURAL PERSON'S 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, computer-generated, HIGHLY REALISTIC electronic REPRESENTATION THAT IS READILY IDENTIFIABLE AS THE VOICE OR VISUAL LIKENESS OF AN INDIVIDUAL THAT IS EMBODIED IN A SOUND RECORDING, IMAGE, AUDIOVISUAL WORK, INCLUDING AN AUDIOVISUAL WORK THAT DOES NOT HAVE ANY ACCOMPANYING SOUNDS, OR TRANSMISSION IN WHICH: (I) THE ACTUAL INDIVIDUAL DID NOT ACTUALLY PERFORM OR APPEAR; OR (II) THE ACTUAL INDIVIDUAL DID PERFORM OR APPEAR, BUT THE FUNDAMENTAL CHARACTER OF THE PERFORMANCE OR APPEARANCE HAS BEEN MATERIALLY ALTERED. A digital replica does not include the electronic reproduction, USE OF A SAMPLE OF ONE SOUND RECORDING OR AUDIOVISUAL WORK INTO ANOTHER, REMIXING, MASTERING, OR DIGITAL REMASTERING OF A SOUND RECORDING OR AUDIOVISUAL WORK AUTHORIZED BY THE COPYRIGHT HOLDER. 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.

Requires consent to use a deceased performer's digital replica, with damages for unauthorized uses.

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 AN AUDIOVISUAL WORK, SOUND RECORDING, OR FOR THE LIVE PERFORMANCE OF A MUSICAL WORK, WITH KNOWLEDGE THAT THE USE WAS OF A DIGITAL REPLICA AND WAS NOT AUTHORIZED BY THE APPLICABLE RIGHT HOLDER, 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.

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 SUCH PERSON'S 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, INCLUDING SOME degree of fictionalization; a representation of a deceased performer as THEMSELF, INCLUDING SOME 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. v. works identified pursuant to this paragraph shall not violate this section, regardless of the medium or means of transmission.

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.

Specifies deceased personalities' property rights are freely transferable through contracts, wills, or trusts.

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 SUCH DECEASED PERSONALITY'S 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 SUCH DECEASED PERSONALITY'S lifetime by which the deceased personality assigned the rights, in whole or in part, to use SUCH DECEASED PERSONALITY'S name, voice, signature, photograph, or likeness.

4. If any deceased personality does not transfer SUCH DECEASED PERSONALITY'S 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.

Exempts media owners or employees from liability unless they have actual knowledge of unauthorized digital replicas.

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, STREAMING SERVICES, cable television systems, billboards, and transit advertise- ments, 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. Nothing in this section shall apply to a person that offers a service that displays, offers for sale or license, sells or licenses a work of art or other visual work, or audiovisual work, to a user, provided the terms of such sale or license do not authorize such user to engage in acts that constitute a violation of this section, UNLESS IT IS ESTABLISHED THAT THE PERSON RECEIVED A NOTICE FROM THE SUCCESSOR IN INTEREST OF THE DECEASED PERFORMER'S DIGITAL REPLICA RIGHTS BASED ON A GOOD FAITH BELIEF THAT THE DISPLAY, OFFER FOR SALE OR LICENSE OF THE DIGITAL REPLICA ON THE SERVICE IS NOT AUTHORIZED BY THE APPLICABLE RIGHT HOLDER OR THE LAW, AND THE PERSON HAS NOT REMOVED THE WORK CONTAINING THE DIGITAL REPLICA AS SOON AS IS TECHNICALLY AND PRACTICALLY FEASIBLE. § 2. This act shall take effect immediately.