Sponsored by:
Assemblyman CHRIS TULLY
District 38 (Bergen)
SYNOPSIS
Establishes civil right of action for misuse of individuals name, image, likeness, or voice.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning the use of an individuals name, image, likeness, or voice, and supplementing Title 56 of the Revised Statutes and Title 2C of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. As used in P.L. , c. (C. ) (pending before the Legislature as this bill):
Definable group means an assemblage of individuals existing or brought together with or without interrelation, orderly form, or arrangement, including, but not limited to, a crowd at any sporting event, a crowd in any street or public building, or the audience at any theatrical or entertainment production.
Image means any photograph or photographic reproduction, still or moving, or any recorded or live visual transmission, of any individual, so that the individual is readily identifiable.
Individual means a human being, living or dead.
Likeness means the use of an image, realistic facsimile of an image, or portrait of an individual for commercial purposes.
Person means any individual, firm, association, partnership, corporation, joint stock company, syndicate, receiver, common law trust, conservator, statutory trust, or any other concern by whatever name known or however organized, formed, or created, and includes not-for-profit corporations, associations, educational and religious institutions, political parties, or community, civic, or other organizations.
Use means commercial exploitation of an individuals name, image, likeness, or voice, including, but not limited to, the display or exhibition of the individuals name, image, likeness, or voice, pursuant to a contract, license, or royalty agreement, whether or not for monetary remuneration, in association with a commercial enterprise, non-profit fundraising solicitation, or political cause or campaign; or the continuing commercial availability of a sound recording or audiovisual work in which the individuals name, image, likeness, or voice is readily identifiable.
Voice means a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual.
2. a. Every individual has a property right in the use of that individuals name, image, likeness, or voice in any medium in any manner.
b. The individual rights provided for in P.L. , c. (C. ) (pending before the Legislature as this bill) constitute property rights and are freely assignable and licensable, and do not expire upon the death of the individual, whether or not such rights were commercially exploited by the individual during the individuals lifetime. Such property rights shall be descendible to the executors, assigns, heirs, or devisees of the individual so protected by this section.
c. The rights provided for in P.L. , c. (C. ) (pending before the Legislature as this bill) shall be deemed exclusive to the individual, subject to the assignment or licensing of such rights as provided in subsection b. of this section, during such individuals lifetime and to the executors, heirs, assigns, or devisees for a period of 10 years after the death of the individual, unless extended pursuant to section 3 of P.L. , c. (C. ) (pending before the Legislature as this bill).
3. a. Commercial exploitation of the property right by any executor, assignee, heir, or devisee, if the individual is deceased, shall maintain the right as the exclusive property of the executor, assignee, heir, or devisee until such right is terminated as provided for in subsection b. of this section.
b. The exclusive right of commercial exploitation is terminated by proof of the non-use of the name, image, likeness, or voice of an individual for commercial purposes by an executor, assignee, heir, or devisee to such use for a period of two years subsequent to the initial period of 10 years following the individuals death.
4. a. (1) Any person who knowingly uses or infringes upon the use of an individuals property right as established pursuant to section 2 of P.L. , c. (C. ) (pending before the Legislature as this bill), without authorization or consent in accordance with subsection b. of this section, in any medium and in any manner directed to any person other than such individual, for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services, is subject to a civil action in this State.
(2) A person shall be liable in a civil action in this State if the person publishes, performs, distributes, transmits, or otherwise makes available to the public an individuals name, image, likeness, or voice, with knowledge that use of the name, image, likeness, or voice was not authorized or consented to by the individual or the individuals executor, assignee, heir, or devisee.
(3) A person shall be liable in a civil action in this State if the person distributes, transmits, or otherwise makes available an algorithm, software program, software code, tool, or other technology, service, or device, the primary purpose or function of which is the production of an individuals name, image, likeness, or voice without authorization or consent by the individual or the individuals executor, assignee, heir, or devisee.
b. Consent or authorization for use under P.L. , c. (C. ) (pending before the Legislature as this bill) shall be provided by the following prior to the use of a persons name, image, likeness, or voice:
(1) the individual;
(2) a parent or legal guardian of a minor, where applicable; or
(3) an executor or administrator, assignee, heir, or devisee of a deceased individual, where applicable.
c. It shall not be a defense to a violation of subsection a. of this section that the image includes more than one individual so identifiable; provided, that the individual or individuals complaining of the use shall bring separate causes of action and shall not be represented solely as members of a definable group depicted in the image.
d. If the unauthorized use is by means of products, merchandise, goods or other tangible personal property, all such property, including all instrumentalities used in connection with the unauthorized use by the person in violation of this section, is declared contraband and subject to seizure by, and forfeiture to, the State in the same manner as provided by law for the seizure and forfeiture of other contraband items.
5. a. The court having jurisdiction for any action arising pursuant to P.L. , c. (C. ) (pending before the Legislature as this bill) may grant injunctions on such terms as it may deem reasonable to prevent or restrain the unauthorized use of an individuals name, image, likeness, or voice. As part of such injunction, the court may authorize the forfeiture of all unauthorized items and seize all instrumentalities used in connection with the violation of the individuals property rights. All instrumentalities seized pursuant to enforcing an injunction under this subsection shall be liquidated and used to satisfy statutory damages, if damages are recovered by the rights holder.
b. At any time while an action under P.L. , c. (C. ) (pending before the Legislature as this bill) is pending, the court may order the impounding, on such terms as it may deem reasonable, of all materials or any part thereof claimed to