Right of publicity

§ 50-f. Right of publicity. 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,
photograph, 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.

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.

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. The consent required by this section shall be exercisable by the
person or persons to whom the right of consent, or portion thereof, has
been transferred in accordance with subdivision three of this section,
or if no transfer has occurred, then by the person or persons to whom
the right of consent, or portion thereof, has passed in accordance with
subdivision five of this section.

5. Subject to subdivisions three and four of this section, the rights
under this section 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 rights
under this section. 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.

6. 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.

7. a. Any person claiming to be a successor in interest to the rights
of a deceased personality under this section or a licensee thereof may
register that claim with the secretary of state on a form prescribed by
the secretary of state and upon payment of a fee, which the secretary of
state shall set by rule. The form shall be verified and 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.
A successor in interest to the rights of a deceased personality under
this section or a licensee thereof shall not have a cause of action for
a use prohibited by this section that occurs before the successor in
interest or licensee registers a claim of the rights.

b. Upon receipt and after filing of any document under this section,
the secretary of state shall 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 secretary of state's internet website.

c. Claims registered under this subdivision shall be public records.

8. An action shall not be brought under this section by reason of any
use of a deceased personality's name, voice, signature, photograph, or
likeness occurring after the expiration of forty years after the death
of the deceased personality.

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
advertisements, 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.

11. The provisions of this section are in addition to, but shall not
supersede, any other rights or remedies available in law or equity.

12. This section shall apply to the adjudication of liability and the
imposition of any damages or other remedies in cases in which the
liability, damages, and other remedies arise from acts occurring
directly in this state. For purposes of this section, acts giving rise
to liability shall be limited to the use, on or in products,
merchandise, goods, or services, or the advertising or selling, or
soliciting purchases of, products, merchandise, goods, or services
prohibited by this section.

13. Nothing in this section shall be construed to limit, or to
enlarge, the protections that 47 U.S.C. § 230 confers on an interactive
computer service for content provided by another information content
provider, as such terms are defined in 47 U.S.C. § 230.