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90_HB1422ham001
LRB9003925PTgcam01
1 AMENDMENT TO HOUSE BILL 1422
2 AMENDMENT NO. . Amend House Bill 1422 by inserting
3 below Section 1 the following:
4 "Section 5. Definitions. As used in this Act:
5 "Commercial purpose" means the public use or holding out
6 of an individual's identity (i) on or in connection with the
7 offering for sale or sale of a product, merchandise, goods,
8 or services; (ii) for purposes of advertising or promoting
9 products, merchandise, goods, or services; or (iii) for the
10 purpose of fundraising.
11 "Identity" means any attribute of an individual that
12 serves to identify that individual, including but not limited
13 to (i) name, (ii) signature, (iii) photograph, (iv) image,
14 (v) likeness, or (vi) voice.
15 "Individual" means a living or deceased natural person,
16 regardless of whether the identity of that individual has
17 been used for a commercial purpose during the individual's
18 lifetime.
19 "Juristic person" means a partnership, trust, estate,
20 corporation, unincorporated association, or other
21 organization capable of suing and being sued in a court of
22 law.
23 "Name" means the actual name or other name by which an
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1 individual is known that is intended to identify that
2 individual.
3 "Person" means a natural or juristic person.
4 "Work of Fine Art" means (i) a visual rendition
5 including, but not limited to, a painting, drawing,
6 sculpture, mosaic, videotape, or photograph; (ii) a work of
7 calligraphy; (iii) a work of graphic art including, but not
8 limited to, an etching, lithograph, serigraph, or offset
9 print; (iv) a craft work in materials including, but not
10 limited to, clay, textile, fiber, wood, metal, plastic, or
11 glass; or (v) a work in mixed media including, but not
12 limited to, a collage, assemblage, or work consisting of any
13 combination of items (i) through (iv).
14 Section 10. Recognition of right of publicity. The right
15 to control and to choose whether and how to use an
16 individual's identity for commercial purposes is recognized
17 as each individual's right of publicity.
18 Section 15. Transferability, descendability, and
19 divisibility. The rights under this Act are property rights
20 that are freely transferable in whole or in part to any
21 person either by written transfer or by testate or intestate
22 succession or operation of law, except that the rights under
23 this Act are not subject to levy or attachment and may not be
24 the subject of a security interest. Nothing in this Section
25 limits the ability of any party to levy, attach, or obtain a
26 security interest in the proceeds of the rights under this
27 Act or the proceeds of the exercise of those rights.
28 Section 20. Enforcement of rights and remedies.
29 (a) The rights and remedies set forth in this Act may be
30 exercised and enforced by:
31 (1) an individual or his or her authorized
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1 representative;
2 (2) a person to whom the recognized rights have
3 been transferred by written transfer under Section 15 of
4 this Act; or
5 (3) after the death of an individual who has not
6 transferred the recognized rights by written transfer
7 under this Act, any person or persons who possesses an
8 aggregate of more than one-half interest in those rights.
9 (b) Each person described in paragraph (3) of subsection
10 (a) shall make a proportional accounting to, and shall act at
11 all times in good faith with respect to, any other person in
12 whom the rights being enforced have vested.
13 Section 25. Termination of rights of deceased
14 individual. The rights set forth in this Act terminate if:
15 (a) a deceased individual has not transferred his or her
16 rights under Section 15 of this Act; and
17 (b) there is no known kindred.
18 Section 30. Limitations regarding use of an individual's
19 identity.
20 (a) A person may not use an individual's identity for
21 commercial purposes during the individual's lifetime without
22 having obtained previous written consent from the appropriate
23 person or persons specified in Section 20 of this Act or
24 their authorized representative.
25 (b) If an individual's death occurs after the effective
26 date of this Act, a person may not use that individual's
27 identity for commercial purposes for 50 years after the date
28 of the individual's death without having obtained previous
29 written consent from the appropriate person or persons
30 specified in Section 20 of this Act.
31 Section 35. Applicability.
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1 (a) This Act applies to acts or events that take place
2 after the effective date of this Act.
3 (b) This Act does not apply to the following:
4 (1) use of an individual's identity in an attempt
5 to portray, describe, imitate, simulate, or impersonate
6 that individual in a live performance, a single and
7 original work of fine art, play, book, article, musical
8 work, film, radio, television, or other audio or visual
9 program, provided that the performance, work, or program
10 does not constitute in and of itself a commercial
11 advertisement for a product, merchandise, goods, or
12 services;
13 (2) use of an individual's identity for
14 non-commercial purposes, including any news, public
15 affairs, or sports broadcast or account, or any political
16 campaign;
17 (3) use of an individual's name in truthfully
18 identifying the person as the author of a particular work
19 or program or the performer in a particular performance;
20 (4) promotional materials, advertisements, or
21 commercial announcements for a use described under
22 paragraph (1), (2), or (3) of this subsection; or
23 (5) use of photographs, videotapes, and images by a
24 person, firm, or corporation practicing the profession of
25 photography ("professional photographer") to exhibit in
26 or about the professional photographer's place of
27 business or portfolio, specimens of the professional
28 photographer's work, unless the exhibition is continued
29 by the professional photographer after written notice
30 objecting to the exhibition has been given by the
31 individual portrayed.
32 Section 40. Violations; monetary relief.
33 (a) A person who violates Section 30 of this Act may be
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1 liable for either of the following, whichever is greater:
2 (1) actual damages and profits derived from the
3 unauthorized use; or
4 (2) $1,000.
5 (b) Punitive damages may be awarded against a person
6 found to have willfully violated Section 30 of this Act.
7 Section 45. Establishment of profits. In establishing
8 profits under paragraph (1) of subsection (a) of Section 40
9 of this Act:
10 (a) the plaintiff is required to prove the damages or
11 gross revenue attributable to the unauthorized use; and
12 (b) the defendant is required to prove properly
13 deductible expenses.
14 Section 50. Injunctive relief. Upon a showing of cause as
15 required by Article XI of the Code of Civil Procedure for the
16 issuance of injunctive relief, the court may issue such
17 temporary restraining orders, preliminary injunctions, and
18 permanent injunctions as may be appropriate under this Act.
19 Section 55. Attorney's fees; costs. The court may award
20 to the prevailing party reasonable attorney's fees, costs, or
21 expenses relating to an action under this Act.
22 Section 60. Rights and remedies. The rights and remedies
23 provided for in this Act are meant to supplant those
24 available under the common law as of the effective date of
25 this Act, but do not affect an individual's common law rights
26 for acts taking place before the effective date of this Act.
27 Except for the common law right of publicity, the rights and
28 remedies provided under this Act are supplemental to any
29 other rights and remedies provided by law.".