HB4875 EnrolledLRB103 38718 BDA 68855 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Right of Publicity Act is amended by
5changing Sections 5, 20, 30, and 35 as follows:
 
6    (765 ILCS 1075/5)
7    Sec. 5. Definitions. As used in this Act:
8    "Artificial intelligence" means a machine-based system
9that, for explicit or implicit objectives, infers, from the
10input it receives, how to generate outputs such as
11predictions, content, recommendations, or decisions that can
12influence physical or virtual environments. "Artificial
13intelligence" includes generative artificial intelligence.
14    "Commercial purpose" means the public use or holding out
15of an individual's identity (i) on or in connection with the
16offering for sale or sale of a product, merchandise, goods, or
17services; (ii) for purposes of advertising or promoting
18products, merchandise, goods, or services; or (iii) for the
19purpose of fundraising.
20    "Application software provider" means a person providing a
21digital distribution service for other software applications
22and that allows users to search for and download such
23applications.

 

 

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1    "Cloud service provider" means a cloud service provider as
2defined by 6 U.S.C. 650.
3    "Digital replica" means a newly created, electronic
4representation of the voice, image, or likeness of an actual
5individual created using a computer, algorithm, software,
6tool, artificial intelligence, or other technology that is
7fixed in a sound recording or audiovisual work in which that
8individual did not actually perform or appear, and which a
9reasonable person would believe is that particular
10individual's voice, image, or likeness being imitated.
11    "Generative artificial intelligence" means an automated
12computing system that, when prompted with human prompts,
13descriptions, or queries, can produce outputs that simulate
14human-produced content, including, but not limited to, the
15following:
16        (1) textual outputs, such as short answers, essays,
17    poetry, or longer compositions or answers;
18        (2) image outputs, such as fine art, photographs,
19    conceptual art, diagrams, and other images;
20        (3) multimedia outputs, such as audio or video in the
21    form of compositions, songs, or short-form or long-form
22    audio or video; and
23        (4) other content that would be otherwise produced by
24    human means.
25    "Identity" means any attribute of an individual that
26serves to identify that individual to an ordinary, reasonable

 

 

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1viewer or listener, including but not limited to: (i) name,
2(ii) signature, (iii) photograph, (iv) image, (v) likeness, or
3(vi) voice.
4    "Individual" means a living or deceased natural person,
5regardless of whether the identity of that individual has been
6used for a commercial purpose during the individual's
7lifetime.
8    "Juristic person" means a partnership, trust, estate,
9corporation, unincorporated association, or other organization
10capable of suing and being sued in a court of law.
11    "Name" means the actual name or other name by which an
12individual is known that is intended to identify that
13individual.
14    "Person" means a natural or juristic person. "Person" only
15includes a service provider under subsections (b) and (d) of
16Section 30 if the service provider created the unauthorized
17digital replica. "Person" does not include a data center, as
18defined by the Department of Commerce and Economic Opportunity
19Law of the Civil Administrative Code of Illinois, under
20subsections (b) and (d) of Section 30.
21    "Service provider" means any entity offering broadband
22service as that term is used in Section 10 of the Broadband
23Advisory Council Act, a wireless carrier as defined by 47
24U.S.C. 615b(4), or a telecommunication carrier as that term is
25used in Section 13-202 of the Public Utilities Act.
26    "Unauthorized digital replica" means the use of a digital

 

 

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1replica of an individual without the consent of the
2appropriate person or persons identified in Section 20 or
3their authorized representative.
4    "Work of Fine Art" means (i) a visual rendition including,
5but not limited to, a painting, drawing, sculpture, mosaic,
6videotape, or photograph; (ii) a work of calligraphy; (iii) a
7work of graphic art including, but not limited to, an etching,
8lithograph, serigraph, or offset print; (iv) a craft work in
9materials including, but not limited to, clay, textile, fiber,
10wood, metal, plastic, or glass; or (v) a work in mixed media
11including, but not limited to, a collage, assemblage, or work
12consisting of any combination of items (i) through (iv).
13(Source: P.A. 90-747, eff. 1-1-99.)
 
14    (765 ILCS 1075/20)
15    Sec. 20. Enforcement of rights and remedies.
16    (a) The rights and remedies set forth in this Act may be
17exercised and enforced by:
18        (1) an individual or his or her authorized
19    representative;
20        (2) a person to whom the recognized rights have been
21    transferred by written transfer under Section 15 of this
22    Act; or
23        (3) after the death of an individual who has not
24    transferred the recognized rights by written transfer
25    under this Act, any person or persons who possesses an

 

 

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1    interest in those rights.
2    (a-5) In addition to the enforcement of rights and
3remedies in subsection (a), the rights and remedies set forth
4in this Act may, in the case of an individual who is a
5recording artist, be enforced by:
6        (1) the individual who is the recording artist; or
7        (2) a person who has entered into a contract for the
8    individual's exclusive personal services as a recording
9    artist or who has entered into a contract for an exclusive
10    license to distribute sound recordings that capture the
11    recording artist's audio performances.
12    (b) Each person described in paragraph (3) of subsection
13(a) shall make a proportional accounting to, and shall act at
14all times in good faith with respect to, any other person in
15whom the rights being enforced have vested.
16(Source: P.A. 90-747, eff. 1-1-99.)
 
17    (765 ILCS 1075/30)
18    Sec. 30. Limitations regarding use of an individual's
19identity.
20    (a) A person may not use an individual's identity for
21commercial purposes during the individual's lifetime without
22having obtained previous written consent from the appropriate
23person or persons specified in Section 20 of this Act or their
24authorized representative.
25    (b) A person may not knowingly distribute, transmit, or

 

 

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1make available to the general public a sound recording or
2audiovisual work with actual knowledge that the work contains
3an unauthorized digital replica.
4    (c) If an individual's death occurs after the effective
5date of this Act, a person may not use that individual's
6identity or digital replica in violation of this Act for
7commercial purposes for 50 years after the date of the
8individual's death without having obtained previous written
9consent from the appropriate person or persons specified in
10Section 20 of this Act.
11    (d) Any person who materially contributes to, induces, or
12otherwise facilitates a violation of subsection (b) by another
13person after having obtained actual knowledge that the other
14person is infringing upon an individual's rights under this
15Section may be found liable for the violation.
16    (e) Subsection (d) does not apply to a person that solely
17transmits, stores, or provides access to data or software,
18including interactive entertainment software, application
19software providers, or cloud service providers with respect to
20any unauthorized digital replica stored or transmitted at the
21direction of a user of material that resides on a system or
22network, if the person:
23        (1) does not have actual knowledge that the material
24    or an activity using the material on the system or network
25    is unauthorized;
26        (2) in the absence of such actual knowledge, does not

 

 

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1    willfully disregard facts or circumstances that would
2    create actual knowledge; or
3        (3) upon obtaining actual knowledge, facts or
4    circumstances that would create actual knowledge, or
5    written notification of claimed unauthorized activity,
6    acts expeditiously to remove or disable access to the
7    material that is the subject of infringing activity; if
8    the person does not personally have the ability to remove
9    or disable access to the material, the person acts
10    expeditiously to notify the person that has the ability to
11    remove or disable access to the material. As used in this
12    subsection, "expeditiously" has the same meaning as it
13    does in 17 U.S.C. 512.
14    (f) Subject to the limitations in subsection (e), all of
15the elements of 17 U.S.C. 512 shall be incorporated mutatis
16mutandis with respect to claims relating to unauthorized
17digital replicas. This exemption shall apply without regard to
18whether the unauthorized version infringes copyright.
19    (g) Nothing in this Act may be construed in a manner
20inconsistent with 47 U.S.C. 230 or any other federal law.
21(Source: P.A. 90-747, eff. 1-1-99.)
 
22    (765 ILCS 1075/35)
23    Sec. 35. Applicability.
24    (a) This Act applies to acts or events that take place
25after the effective date of this Act.

 

 

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1    (b) Subsections (a) and (c) of Section 30 do This Act does
2not apply to the following:
3        (1) use of an individual's identity in an attempt to
4    portray, describe, or impersonate that individual in a
5    live performance, a single and original work of fine art,
6    play, book, article, musical work, film, radio,
7    television, or other audio, visual, or audio-visual work,
8    provided that the performance, work, play, book, article,
9    or film does not constitute in and of itself a commercial
10    advertisement for a product, merchandise, goods, or
11    services;
12        (2) use of an individual's identity for non-commercial
13    purposes, including any news, public affairs, or sports
14    broadcast or account, or any political campaign;
15        (3) use of an individual's name in truthfully
16    identifying the person as the author of a particular work
17    or program or the performer in a particular performance;
18        (4) promotional materials, advertisements, or
19    commercial announcements for a use described under
20    paragraph (1), (2), or (3) of this subsection; or
21        (5) use of photographs, videotapes, and images by a
22    person, firm, or corporation practicing the profession of
23    photography ("professional photographer") to exhibit in or
24    about the professional photographer's place of business or
25    portfolio, specimens of the professional photographer's
26    work, unless the exhibition is continued by the

 

 

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1    professional photographer after written notice objecting
2    to the exhibition has been given by the individual
3    portrayed.
4    (c) Subsections (b) and (c) of Section 30 do not apply to
5the use of identity or digital replicas in the following:
6        (1) news, public affairs, or a sports broadcast or
7    account, or any political campaign;
8        (2) for a purpose that has political, public interest,
9    educational, or newsworthy value, unless use of the
10    audiovisual digital replica is intended to create, and
11    does create, the false impression to a reasonable viewer
12    or listener that the work is an authentic recording in
13    which the individual participated;
14        (3) use of a digital replica to depict the individual
15    in a documentary, docudrama, or historical or biographical
16    audiovisual work, or any other representation of the
17    individual as such individual, regardless of the degree of
18    fictionalization, unless the use of the audiovisual
19    digital replica creates the false impression to a
20    reasonable viewer or listener that the digital replica is
21    an authentic recording or that the individual participated
22    in the work, including, for example, in a live performance
23    of a musical work an individual did not participate in;
24        (4) use of digital replica for the purposes of
25    comment, criticism, scholarship, satire, or parody; or
26        (5) promotional materials, advertisements, or

 

 

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1    commercial announcements for a use described in paragraphs
2    (1), (2), (3), and (4).
3    (d) The provisions of this amendatory Act of the 103rd
4General Assembly do not apply to any action filed before, nor
5to any action pending on, its effective date.
6(Source: P.A. 90-747, eff. 1-1-99.)