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| [ Introduced ] | [ Enrolled ] | [ House Amendment 001 ] |
| [ Senate Amendment 002 ] |
90_HB1422eng
New Act
Creates the Right of Publicity Act with the short title
as the only provision.
LRB9003925PTpk
HB1422 Engrossed LRB9003925PTpk
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, including but not limited
15 to (i) name, (ii) signature, (iii) photograph, (iv) image,
16 (v) likeness, or (vi) voice.
17 "Individual" means a living or deceased natural person,
18 regardless of whether the identity of that individual has
19 been used for a commercial purpose during the individual's
20 lifetime.
21 "Juristic person" means a partnership, trust, estate,
22 corporation, unincorporated association, or other
23 organization capable of suing and being sued in a court of
24 law.
25 "Name" means the actual name or other name by which an
26 individual is known that is intended to identify that
27 individual.
28 "Person" means a natural or juristic person.
29 "Work of Fine Art" means (i) a visual rendition
30 including, but not limited to, a painting, drawing,
31 sculpture, mosaic, videotape, or photograph; (ii) a work of
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1 calligraphy; (iii) a work of graphic art including, but not
2 limited to, an etching, lithograph, serigraph, or offset
3 print; (iv) a craft work in materials including, but not
4 limited to, clay, textile, fiber, wood, metal, plastic, or
5 glass; or (v) a work in mixed media including, but not
6 limited to, a collage, assemblage, or work consisting of any
7 combination of items (i) through (iv).
8 Section 10. Recognition of right of publicity. The right
9 to control and to choose whether and how to use an
10 individual's identity for commercial purposes is recognized
11 as each individual's right of publicity.
12 Section 15. Transferability, descendability, and
13 divisibility. The rights under this Act are property rights
14 that are freely transferable in whole or in part to any
15 person either by written transfer or by testate or intestate
16 succession or operation of law, except that the rights under
17 this Act are not subject to levy or attachment and may not be
18 the subject of a security interest. Nothing in this Section
19 limits the ability of any party to levy, attach, or obtain a
20 security interest in the proceeds of the rights under this
21 Act or the proceeds of the exercise of those rights.
22 Section 20. Enforcement of rights and remedies.
23 (a) The rights and remedies set forth in this Act may be
24 exercised and enforced by:
25 (1) an individual or his or her authorized
26 representative;
27 (2) a person to whom the recognized rights have
28 been transferred by written transfer under Section 15 of
29 this Act; or
30 (3) after the death of an individual who has not
31 transferred the recognized rights by written transfer
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1 under this Act, any person or persons who possesses an
2 aggregate of more than one-half interest in those rights.
3 (b) Each person described in paragraph (3) of subsection
4 (a) shall make a proportional accounting to, and shall act at
5 all times in good faith with respect to, any other person in
6 whom the rights being enforced have vested.
7 Section 25. Termination of rights of deceased
8 individual. The rights set forth in this Act terminate if:
9 (a) a deceased individual has not transferred his or her
10 rights under Section 15 of this Act; and
11 (b) there is no known kindred.
12 Section 30. Limitations regarding use of an individual's
13 identity.
14 (a) A person may not use an individual's identity for
15 commercial purposes during the individual's lifetime without
16 having obtained previous written consent from the appropriate
17 person or persons specified in Section 20 of this Act or
18 their authorized representative.
19 (b) If an individual's death occurs after the effective
20 date of this Act, a person may not use that individual's
21 identity for commercial purposes for 50 years after the date
22 of the individual's death without having obtained previous
23 written consent from the appropriate person or persons
24 specified in Section 20 of this Act.
25 Section 35. Applicability.
26 (a) This Act applies to acts or events that take place
27 after the effective date of this Act.
28 (b) This Act does not apply to the following:
29 (1) use of an individual's identity in an attempt
30 to portray, describe, imitate, simulate, or impersonate
31 that individual in a live performance, a single and
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1 original work of fine art, play, book, article, musical
2 work, film, radio, television, or other audio or visual
3 program, provided that the performance, work, or program
4 does not constitute in and of itself a commercial
5 advertisement for a product, merchandise, goods, or
6 services;
7 (2) use of an individual's identity for
8 non-commercial purposes, including any news, public
9 affairs, or sports broadcast or account, or any political
10 campaign;
11 (3) use of an individual's name in truthfully
12 identifying the person as the author of a particular work
13 or program or the performer in a particular performance;
14 (4) promotional materials, advertisements, or
15 commercial announcements for a use described under
16 paragraph (1), (2), or (3) of this subsection; or
17 (5) use of photographs, videotapes, and images by a
18 person, firm, or corporation practicing the profession of
19 photography ("professional photographer") to exhibit in
20 or about the professional photographer's place of
21 business or portfolio, specimens of the professional
22 photographer's work, unless the exhibition is continued
23 by the professional photographer after written notice
24 objecting to the exhibition has been given by the
25 individual portrayed.
26 Section 40. Violations; monetary relief.
27 (a) A person who violates Section 30 of this Act may be
28 liable for either of the following, whichever is greater:
29 (1) actual damages and profits derived from the
30 unauthorized use; or
31 (2) $1,000.
32 (b) Punitive damages may be awarded against a person
33 found to have willfully violated Section 30 of this Act.
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1 Section 45. Establishment of profits. In establishing
2 profits under paragraph (1) of subsection (a) of Section 40
3 of this Act:
4 (a) the plaintiff is required to prove the damages or
5 gross revenue attributable to the unauthorized use; and
6 (b) the defendant is required to prove properly
7 deductible expenses.
8 Section 50. Injunctive relief. Upon a showing of cause as
9 required by Article XI of the Code of Civil Procedure for the
10 issuance of injunctive relief, the court may issue such
11 temporary restraining orders, preliminary injunctions, and
12 permanent injunctions as may be appropriate under this Act.
13 Section 55. Attorney's fees; costs. The court may award
14 to the prevailing party reasonable attorney's fees, costs, or
15 expenses relating to an action under this Act.
16 Section 60. Rights and remedies. The rights and remedies
17 provided for in this Act are meant to supplant those
18 available under the common law as of the effective date of
19 this Act, but do not affect an individual's common law rights
20 for acts taking place before the effective date of this Act.
21 Except for the common law right of publicity, the rights and
22 remedies provided under this Act are supplemental to any
23 other rights and remedies provided by law.