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90_HB1422sam002
LRB9003925PTbdam
1 AMENDMENT TO HOUSE BILL 1422
2 AMENDMENT NO. . Amend House Bill 1422 by replacing
3 everything after the enacting clause with the following:
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,
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1 corporation, unincorporated association, or other
2 organization capable of suing and being sued in a court of
3 law.
4 "Name" means the actual name or other name by which an
5 individual is known that is intended to identify that
6 individual.
7 "Person" means a natural or juristic person.
8 "Work of Fine Art" means (i) a visual rendition
9 including, but not limited to, a painting, drawing,
10 sculpture, mosaic, videotape, or photograph; (ii) a work of
11 calligraphy; (iii) a work of graphic art including, but not
12 limited to, an etching, lithograph, serigraph, or offset
13 print; (iv) a craft work in materials including, but not
14 limited to, clay, textile, fiber, wood, metal, plastic, or
15 glass; or (v) a work in mixed media including, but not
16 limited to, a collage, assemblage, or work consisting of any
17 combination of items (i) through (iv).
18 Section 10. Recognition of right of publicity. The right
19 to control and to choose whether and how to use an
20 individual's identity for commercial purposes is recognized
21 as each individual's right of publicity.
22 Section 15. Transferability, descendability, and
23 divisibility. The rights under this Act are property rights
24 that are freely transferable in whole or in part to any
25 person either by written transfer, including but not limited
26 to wills and trusts, or by intestate succession only to an
27 individual's spouse, parents, children, and grandchildren,
28 except that the rights under this Act are not subject to levy
29 or attachment and may not be the subject of a security
30 interest. Nothing in this Section limits the ability of any
31 party to levy, attach, or obtain a security interest in the
32 proceeds of the rights under this Act or the proceeds of the
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1 exercise of those rights.
2 Section 20. Enforcement of rights and remedies.
3 (a) The rights and remedies set forth in this Act may be
4 exercised and enforced by:
5 (1) an individual or his or her authorized
6 representative;
7 (2) a person to whom the recognized rights have
8 been transferred by written transfer under Section 15 of
9 this Act; or
10 (3) after the death of an individual who has not
11 transferred the recognized rights by written transfer
12 under this Act, any person or persons who possesses an
13 interest in those rights.
14 (b) Each person described in paragraph (3) of subsection
15 (a) shall make a proportional accounting to, and shall act at
16 all times in good faith with respect to, any other person in
17 whom the rights being enforced have vested.
18 Section 25. Termination of rights of deceased
19 individual. The rights set forth in this Act terminate if:
20 (a) a deceased individual has not transferred his or her
21 rights in writing under Section 15 of this Act; and
22 (b) the individual has no living spouse, parents,
23 children, or grandchildren.
24 Section 30. Limitations regarding use of an individual's
25 identity.
26 (a) A person may not use an individual's identity for
27 commercial purposes during the individual's lifetime without
28 having obtained previous written consent from the appropriate
29 person or persons specified in Section 20 of this Act or
30 their authorized representative.
31 (b) If an individual's death occurs after the effective
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1 date of this Act, a person may not use that individual's
2 identity for commercial purposes for 50 years after the date
3 of the individual's death without having obtained previous
4 written consent from the appropriate person or persons
5 specified in Section 20 of this Act.
6 Section 35. Applicability.
7 (a) This Act applies to acts or events that take place
8 after the effective date of this Act.
9 (b) This Act does not apply to the following:
10 (1) use of an individual's identity in an attempt
11 to portray, describe, or impersonate that individual in a
12 live performance, a single and original work of fine art,
13 play, book, article, musical work, film, radio,
14 television, or other audio, visual, or audio-visual work,
15 provided that the performance, work, play, book, article,
16 or film does not constitute in and of itself a commercial
17 advertisement for a product, merchandise, goods, or
18 services;
19 (2) use of an individual's identity for
20 non-commercial purposes, including any news, public
21 affairs, or sports broadcast or account, or any political
22 campaign;
23 (3) use of an individual's name in truthfully
24 identifying the person as the author of a particular work
25 or program or the performer in a particular performance;
26 (4) promotional materials, advertisements, or
27 commercial announcements for a use described under
28 paragraph (1), (2), or (3) of this subsection; or
29 (5) use of photographs, videotapes, and images by a
30 person, firm, or corporation practicing the profession of
31 photography ("professional photographer") to exhibit in
32 or about the professional photographer's place of
33 business or portfolio, specimens of the professional
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1 photographer's work, unless the exhibition is continued
2 by the professional photographer after written notice
3 objecting to the exhibition has been given by the
4 individual portrayed.
5 Section 40. Violations; monetary relief.
6 (a) A person who violates Section 30 of this Act may be
7 liable for either of the following, whichever is greater:
8 (1) actual damages, profits derived from the
9 unauthorized use, or both; or
10 (2) $1,000.
11 (b) Punitive damages may be awarded against a person
12 found to have willfully violated Section 30 of this Act.
13 Section 45. Establishment of profits. In establishing
14 profits under paragraph (1) of subsection (a) of Section 40
15 of this Act:
16 (a) the plaintiff is required to prove the damages or
17 gross revenue attributable to the unauthorized use; and
18 (b) the defendant is required to prove properly
19 deductible expenses.
20 Section 50. Injunctive relief. Upon a showing of cause as
21 required by Article XI of the Code of Civil Procedure for the
22 issuance of injunctive relief, the court may issue such
23 temporary restraining orders, preliminary injunctions, and
24 permanent injunctions as may be appropriate under this Act.
25 Section 55. Attorney's fees; costs. The court may award
26 to the prevailing party reasonable attorney's fees, costs,
27 and expenses relating to an action under this Act.
28 Section 60. Rights and remedies. The rights and remedies
29 provided for in this Act are meant to supplant those
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1 available under the common law as of the effective date of
2 this Act, but do not affect an individual's common law rights
3 as they existed before the effective date of this Act.
4 Except for the common law right of publicity, the rights and
5 remedies provided under this Act are supplemental to any
6 other rights and remedies provided by law including, but not
7 limited to, the common law right of privacy.".