Connecticut Seal

General Assembly

 

Committee Bill No. 6818

January Session, 2007

 

LCO No. 5857

 

*05857HB06818JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING A RIGHT OF PUBLICITY.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2007) As used in this section and sections 2 to 8, inclusive, of this act:

(1) "Name" means the actual or assumed name of a living or deceased individual that is intended or used to identify the individual;

(2) "Persona" means the name, voice, distinctive mannerisms and gestures, signature, photograph or likeness of an individual, or any element thereof; and

(3) "Right of publicity" means the property right in an individual's persona for a commercial or fund raising purpose.

Sec. 2. (NEW) (Effective October 1, 2007) Each individual has a right of publicity in the use of his or her persona. Such right of publicity shall be freely transferable, assignable and licensable, in whole or in part, by any otherwise permissible form of inter vivos or testamentary transfer including, but not limited to, a will, trust, contract or cotenancy with survivorship provisions or payable on death provisions or, if none is applicable, under the laws of intestate succession applicable to interests in personal property. The right of publicity shall not expire upon the death of the individual and shall exist whether or not the right of publicity was exploited for a commercial or fund raising purpose during the individual's lifetime.

Sec. 3. (NEW) (Effective October 1, 2007) No person may use any aspect of an individual's right of publicity for the following purposes during the individual's lifetime, or for seventy years after the date of the individual's death, without having obtained the prior written consent of the individual or a person, heir, executor, trustee or other fiduciary, individual or entity with proper authority to give such consent: (1) For a commercial purpose, including the advertising of products or services, (2) for a fund raising purpose or for the solicitation of donations, or (3) to create, publish or display an electronic, digital or other modification of an individual's image, voice, likeness, performance or appearance so as to (A) cause the individual to speak or appear to speak words that the person did not speak, or (B) place the individual or appear to place the individual in a place or circumstance in which the individual did not agree to be placed. A failure to obtain such prior consent shall be an infringement of the individual's right of publicity. An infringement may occur under this section without regard to whether the use or purpose is for profit or not for profit.

Sec. 4. (NEW) (Effective October 1, 2007) (a) The following persons may bring a civil action to enforce the rights set forth in sections 1 to 8, inclusive, of this act:

(1) A person or persons, including an individual whose right of publicity is at issue, who individually or collectively own all of an individual's right of publicity, subject to any licenses regarding the right of publicity;

(2) A person or persons, including a licensee of an individual's right of publicity, who is expressly authorized, in writing, by an owner or owners of an individual's right of publicity to bring a civil action;

(3) Except as otherwise provided by an agreement transferring an aspect of an individual's right of publicity, and subject to subsection (c) of this section, a person or persons to whom ownership or any portion of ownership of an individual's right of publicity has been transferred.

(b) Before bringing a civil action under this section, each person who owns less than all of an individual's right of publicity shall notify the individual whose right of publicity is the subject of the proposed civil action, if living, by first class mail addressed to the last-known address of the individual. The person shall also notify any person to whom the individual's right of publicity has been transferred by any means of the proposed civil action by the following means:

(1) First class mail addressed to the last-known address of each transferee; or

(2) If the address of the transferee is not known, publication in a newspaper of general circulation in the municipality in which the individual who is the subject of the proposed civil action resides or, in the case of a deceased individual, in the municipality or probate district in which the individual's estate has been or would have been admitted to probate.

(c) The individual whose right of publicity is the subject of the proposed civil action brought under this section, and any person to whom ownership of that right has been transferred, may object to the proposed civil action not later than twenty days after the date of the mailing of a notice pursuant to subdivision (1) of subsection (b) of this section or sixty days after the date of publication of a notice pursuant to subdivision (2) of subsection (b) of this section by giving written notice of the objection to the person proposing to bring the civil action. If the individual or transferee does not object to the civil action within the time period specified in this subsection, the individual or transferee shall be forever barred from objecting to such action.

(d) No person may bring a civil action under this section if a person, including the individual whose right of publicity is the subject of the proposed civil action, who collectively owns more than fifty per cent of the individual's right of publicity objects to the proposed civil action.

(e) Each person, other than a licensee of an individual's right of publicity, who owns less than all of an individual's right of publicity and brings a civil action under this section shall account to any other persons owning an interest in that right of publicity to the extent of the other person's interest with respect to any net recovery in the civil action less the person's costs of collection and a reasonable attorney's fee.

Sec. 5. (NEW) (Effective October 1, 2007) (a) The Superior Court may grant temporary restraining orders, preliminary injunctions and permanent injunctions as may be appropriate pursuant to chapter 916 of the general statutes to prevent or restrain the unauthorized use of the rights in a living or deceased individual's persona.

(b) Any person who infringes the rights set forth in sections 1 to 8, inclusive, of this act shall be liable for the greater of two thousand dollars or the actual damages sustained as a result of the infringement, and any profits that are attributable to the infringement and not taken into account when calculating actual damages. To prove profits under this subsection, the injured party or parties shall submit proof of gross revenues attributable to the infringement, and the infringing party shall be required to prove such party's properly deductible expenses. For the purposes of computing statutory damages, use of a name, voice, distinctive mannerisms and gestures, signature, photograph or likeness embodied in one work constitutes a single act of infringement regardless of the number of copies made or the number of times the name, voice, distinctive mannerisms and gestures, signature, photograph or likeness are displayed.

(c) At any time while an action under sections 1 to 8, inclusive, of this act is pending, the court may order the impounding of all materials or any part thereof claimed to have been made or used in violation of the injured party's rights, and the court may enjoin the use of all plates, molds, matrices, masters, tapes, films, film negatives or other electronic media and articles by means of which such materials may be reproduced.

(d) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the injured party's rights, and of all plates, molds, matrices, masters, tapes, films, film negatives or other electronic media and articles by means of which such materials may be reproduced.

(e) The court may allow the prevailing party to recover court costs, a reasonable attorney's fee and other expenses of litigation incurred in recovering any remedy or defending any action brought under this section.

Sec. 6. (NEW) (Effective October 1, 2007) The provisions of sections 1 to 8, inclusive, of this act shall not apply to the use of an individual's persona in any of the following:

(1) Bona fide news or public affairs reporting and programs;

(2) Broadcast or portrayal of an elected or appointed public official or, of a candidate for public office, provided the individual's persona is not used in such broadcast or portrayal for a commercial purpose without the consent of the individual;

(3) Broadcast or reporting of an event or topic of general public interest;

(4) An original work of fine art;

(5) Literary works in print or text;

(6) Theatrical works, musical compositions, film and radio and television programs, unless the individual's image, voice, likeness, performance or appearance is modified electronically, digitally or by other means so as to (A) cause the individual to speak or appear to speak words that the person did not speak, or (B) place the individual or appear to place the individual in a place or circumstance in which the individual did not agree to be placed;

(7) Promotional material or an advertisement for a news reporting or entertainment medium for work that is exempt pursuant to this section and that (A) uses all or part of a past edition of the medium's own broadcast or production, and (B) does not convey or reasonably suggest that the individual endorses the news reporting or entertainment medium; or

(8) The use of an individual's name to truthfully identify the individual as the author of a written work or the performer of a recorded performance under circumstances in which the written work or recorded performance is otherwise rightfully reproduced, exhibited or broadcast.

Sec. 7. (NEW) (Effective October 1, 2007) The provisions of sections 1 to 8, inclusive, of this act apply to any act that occurs in this state regardless of the domicile, residence or citizenship of the individual whose right of publicity is at issue and to an act enumerated in section 52-59b of the general statutes.

Sec. 8. (NEW) (Effective October 1, 2007) The rights and remedies provided by sections 1 to 7, inclusive, of this act are cumulative and shall be in addition to any other rights and remedies available at law, or in equity, to any person.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2007

New section

Sec. 2

October 1, 2007

New section

Sec. 3

October 1, 2007

New section

Sec. 4

October 1, 2007

New section

Sec. 5

October 1, 2007

New section

Sec. 6

October 1, 2007

New section

Sec. 7

October 1, 2007

New section

Sec. 8

October 1, 2007

New section

Statement of Purpose:

To protect from infringement by others an individual's right in the use of his or her name, voice, distinctive mannerisms and gestures, signature, photograph or likeness.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]

Co-Sponsors:

REP. SPALLONE, 36th Dist.; REP. MIOLI, 136th Dist.

REP. DREW, 132nd Dist.

H.B. 6818