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90_HB1422enr
New Act
Creates the Right of Publicity Act with the short title
as the only provision.
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1 AN ACT concerning the right of publicity.
2 Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
4 Section 1. Short title. This Act may be cited as the
5 Right of Publicity Act.
6 Section 5. Definitions. As used in this Act:
7 "Commercial purpose" means the public use or holding out
8 of an individual's identity (i) on or in connection with the
9 offering for sale or sale of a product, merchandise, goods,
10 or services; (ii) for purposes of advertising or promoting
11 products, merchandise, goods, or services; or (iii) for the
12 purpose of fundraising.
13 "Identity" means any attribute of an individual that
14 serves to identify that individual to an ordinary, reasonable
15 viewer or listener, including but not limited to (i) name,
16 (ii) signature, (iii) photograph, (iv) image, (v) likeness,
17 or (vi) voice.
18 "Individual" means a living or deceased natural person,
19 regardless of whether the identity of that individual has
20 been used for a commercial purpose during the individual's
21 lifetime.
22 "Juristic person" means a partnership, trust, estate,
23 corporation, unincorporated association, or other
24 organization capable of suing and being sued in a court of
25 law.
26 "Name" means the actual name or other name by which an
27 individual is known that is intended to identify that
28 individual.
29 "Person" means a natural or juristic person.
30 "Work of Fine Art" means (i) a visual rendition
31 including, but not limited to, a painting, drawing,
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1 sculpture, mosaic, videotape, or photograph; (ii) a work of
2 calligraphy; (iii) a work of graphic art including, but not
3 limited to, an etching, lithograph, serigraph, or offset
4 print; (iv) a craft work in materials including, but not
5 limited to, clay, textile, fiber, wood, metal, plastic, or
6 glass; or (v) a work in mixed media including, but not
7 limited to, a collage, assemblage, or work consisting of any
8 combination of items (i) through (iv).
9 Section 10. Recognition of right of publicity. The right
10 to control and to choose whether and how to use an
11 individual's identity for commercial purposes is recognized
12 as each individual's right of publicity.
13 Section 15. Transferability, descendability, and
14 divisibility. The rights under this Act are property rights
15 that are freely transferable in whole or in part to any
16 person either by written transfer, including but not limited
17 to wills and trusts, or by intestate succession only to an
18 individual's spouse, parents, children, and grandchildren,
19 except that the rights under this Act are not subject to levy
20 or attachment and may not be the subject of a security
21 interest. Nothing in this Section limits the ability of any
22 party to levy, attach, or obtain a security interest in the
23 proceeds of the rights under this Act or the proceeds of the
24 exercise of those rights.
25 Section 20. Enforcement of rights and remedies.
26 (a) The rights and remedies set forth in this Act may be
27 exercised and enforced by:
28 (1) an individual or his or her authorized
29 representative;
30 (2) a person to whom the recognized rights have
31 been transferred by written transfer under Section 15 of
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1 this Act; or
2 (3) after the death of an individual who has not
3 transferred the recognized rights by written transfer
4 under this Act, any person or persons who possesses an
5 interest in those rights.
6 (b) Each person described in paragraph (3) of subsection
7 (a) shall make a proportional accounting to, and shall act at
8 all times in good faith with respect to, any other person in
9 whom the rights being enforced have vested.
10 Section 25. Termination of rights of deceased
11 individual. The rights set forth in this Act terminate if:
12 (a) a deceased individual has not transferred his or her
13 rights in writing under Section 15 of this Act; and
14 (b) the individual has no living spouse, parents,
15 children, or grandchildren.
16 Section 30. Limitations regarding use of an individual's
17 identity.
18 (a) A person may not use an individual's identity for
19 commercial purposes during the individual's lifetime without
20 having obtained previous written consent from the appropriate
21 person or persons specified in Section 20 of this Act or
22 their authorized representative.
23 (b) If an individual's death occurs after the effective
24 date of this Act, a person may not use that individual's
25 identity for commercial purposes for 50 years after the date
26 of the individual's death without having obtained previous
27 written consent from the appropriate person or persons
28 specified in Section 20 of this Act.
29 Section 35. Applicability.
30 (a) This Act applies to acts or events that take place
31 after the effective date of this Act.
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1 (b) This Act does not apply to the following:
2 (1) use of an individual's identity in an attempt
3 to portray, describe, or impersonate that individual in a
4 live performance, a single and original work of fine art,
5 play, book, article, musical work, film, radio,
6 television, or other audio, visual, or audio-visual work,
7 provided that the performance, work, play, book, article,
8 or film does not constitute in and of itself a commercial
9 advertisement for a product, merchandise, goods, or
10 services;
11 (2) use of an individual's identity for
12 non-commercial purposes, including any news, public
13 affairs, or sports broadcast or account, or any political
14 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
24 or about the professional photographer's place of
25 business or portfolio, specimens of the professional
26 photographer's work, unless the exhibition is continued
27 by the professional photographer after written notice
28 objecting to the exhibition has been given by the
29 individual portrayed.
30 Section 40. Violations; monetary relief.
31 (a) A person who violates Section 30 of this Act may be
32 liable for either of the following, whichever is greater:
33 (1) actual damages, profits derived from the
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1 unauthorized use, or both; or
2 (2) $1,000.
3 (b) Punitive damages may be awarded against a person
4 found to have willfully violated Section 30 of this Act.
5 Section 45. Establishment of profits. In establishing
6 profits under paragraph (1) of subsection (a) of Section 40
7 of this Act:
8 (a) the plaintiff is required to prove the damages or
9 gross revenue attributable to the unauthorized use; and
10 (b) the defendant is required to prove properly
11 deductible expenses.
12 Section 50. Injunctive relief. Upon a showing of cause as
13 required by Article XI of the Code of Civil Procedure for the
14 issuance of injunctive relief, the court may issue such
15 temporary restraining orders, preliminary injunctions, and
16 permanent injunctions as may be appropriate under this Act.
17 Section 55. Attorney's fees; costs. The court may award
18 to the prevailing party reasonable attorney's fees, costs,
19 and expenses relating to an action under this Act.
20 Section 60. Rights and remedies. The rights and remedies
21 provided for in this Act are meant to supplant those
22 available under the common law as of the effective date of
23 this Act, but do not affect an individual's common law rights
24 as they existed before the effective date of this Act.
25 Except for the common law right of publicity, the rights and
26 remedies provided under this Act are supplemental to any
27 other rights and remedies provided by law including, but not
28 limited to, the common law right of privacy.