Report Title:

Right of Publicity

Description:

Creates a right of publicity law to allow recording artists, TV personalities, and other media celebrities to control the use of their identity for commercial uses during their life and after their death. Effective date of July 1, 2020. (SD1)

THE SENATE

S.B. NO.

2560

TWENTY-SECOND LEGISLATURE, 2004

S.D. 1

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

RELATING TO the ECONOMIC VALUE OF ENTERTAINMENT CELEBRITY IDENTITIES.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. The legislature finds that recording artists and television or movie personalities (celebrities) have a right to control the use of their identities for commercial purposes after their death. The image and likeness of a celebrity is a valuable commodity that can profit other persons after the death of that celebrity. The legislature further finds that no one has a right to exploit the image or likeness of a celebrity posthumously without consent of the heirs.

Many states have enacted a "right of publicity" statute, including California, Florida, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Rhode Island, Tennessee, Texas, Virginia, Washington, and Wisconsin. Current Hawaii law does not provide the same protection to its celebrities.

The legislature further finds that a right of publicity law enhances economic development in Hawaii by encouraging celebrities to produce or perform in Hawaii, which in turn increases publicity for the State as an entertainment destination and media production center. As Hawaii's digital media and film industry continues to expand into new technological areas, celebrity right of publicity protections become increasingly important in attracting and keeping production in the State.

The purpose of this Act is to create what is commonly known as a right of publicity statute that is modeled after California's statute, known as the "Astaire Celebrity Image Protection Act."

SECTION 2. The Hawaii Revised Statutes is amended by adding a new section to be appropriately designated and to read as follows:

   -   Unauthorized use of a person's persona; damages. (a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, including that of a deceased personality's, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without the person's or the person's transferee's prior written consent, or, in the case of a minor, the prior written consent of the parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.

In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of $1,500 or the actual damages suffered as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing profits, the injured party or parties shall present proof only of the gross revenue attributable to the use. A person who violates this section shall prove any deductible expenses.

Punitive damages may also be awarded to the injured party. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs.

(b) With respect to deceased personalities, a play, book, magazine, newspaper, musical composition, audiovisual work, radio or television program, single and original work of art, work of political or newsworthy value, or an advertisement or commercial announcement for any of these works, shall not be considered a product, article of merchandise, good, or service if it is fictional or nonfictional entertainment, or a dramatic, literary, or musical work. A work that includes within it a use in connection with a product, article of merchandise, good, or service, shall not be exempt, notwithstanding the inclusion in a work of a use otherwise exempt under this subsection, if the claimant proves that the use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent from the person or persons specified in subsection (d).

(c) With respect to deceased personalities, the rights recognized under this section shall be freely transferable, in whole or in part, by written contract, or by means of trust or testamentary documents.

(d) The consent required by this section shall be exercisable by the person or persons to whom the right of consent, or portion thereof, has been transferred in accordance with subsection (c), or if no transfer has occurred, then by the person or persons to whom the right of consent, or portion thereof, has passed in accordance with subsection (e).

(e) Subject to subsections (b), (c), and (d), after the death of any person, the rights under this section shall belong to the following person or persons and may be exercised, on behalf of and for the benefit of all of those persons, by those persons who, in the aggregate, are entitled to more than a one-half interest in the rights:

(1) The entire interest in those rights belong to the surviving spouse of the deceased personality unless there are any surviving children or grandchildren of the deceased personality, in which case one-half of the entire interest in those rights belong to the surviving spouse;

(2) The entire interest in those rights belong to the surviving children of the deceased personality and to the surviving children of any dead child of the deceased personality unless the deceased personality has a surviving spouse, in which case the ownership of a one-half interest in rights is divided among the surviving children and grandchildren;

(3) If there is no surviving spouse, and no surviving children or grandchildren, then the entire interest in those rights belong to the surviving parent or parents of the deceased personality; and

(4) The rights of the deceased personality's children and grandchildren are in all cases divided among them and exercisable in the manner provided in section 560:2-106 according to the number of the deceased personality's children represented. The share of the children of a dead child of a deceased personality can be exercised only by the action of a majority of them.

(f) If any deceased personality does not transfer rights under this section by contract, or by means of a trust or testamentary document, and there are no surviving persons as described in subsection (e), then the rights set forth in subsection (a) shall terminate.

(g) A successor in interest to the rights of a deceased personality under this section or a licensee thereof may not recover damages for a use prohibited by this section that occurs before the successor in interest or licensee registers a claim of the rights. Any person claiming to be a successor in interest to the rights of a deceased personality under this section or a licensee thereof may register that claim with the department of commerce and consumer affairs on a form prescribed by the director of commerce and consumer affairs and upon payment of a fee of $500. The registration shall include the name and date of death of the deceased personality, the name and address of the claimant, the basis of the claim, and the rights claimed.

(h) Upon receipt and after filing of any document under this section, the director of commerce and consumer affairs shall post the document along with the entire registry of persons claiming to be a successor in interest to the rights of a deceased personality or a registered licensee under this section on a website accessible by the Internet. The director of commerce and consumer affairs may microfilm or reproduce by other techniques any of the filings or documents and destroy the original filing or document. The microfilm or other reproduction of any document under this section shall be admissible in any court of law. The microfilm or other reproduction of any document may be destroyed by the director of commerce and consumer affairs seventy years after the death of the personality named therein.

(i) Claims registered under subsection (g) shall be public records.

(j) No action shall be brought under this section by reason of any use of a deceased personality's name, voice, signature, photograph, or likeness occurring after the expiration of seventy years after the death of the deceased personality.

(k) The use of a name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required under subsection (a) solely because the material containing the use is commercially sponsored or contains paid advertising. Rather, it shall be a question of fact whether or not the use of the deceased personality's name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising as to constitute a use for which consent is required under subsection (a).

(l) This section shall not apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit ads, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that the owners or employees had knowledge of the unauthorized use of the deceased personality's name, voice, signature, photograph, or likeness as prohibited by this section.

(m) This section shall not be construed so as to prevent:

(1) Any person, firm, or corporation from selling or otherwise transferring any material containing the name, voice, signature, photograph, or likeness in any medium to any user of the name, voice, signature, photograph, or likeness, or to any third party for sale or transfer directly or indirectly to a user, for use in a lawful manner not in violation of this section;

(2) Any person, firm, or corporation practicing the profession of photography, from exhibiting in or about a home or establishment of that person, firm, or corporation specimens of the work of that person, firm, or corporation, if the person, firm, or corporation has not received written notice objecting thereto by the person portrayed or the person having a right to the work under this section;

(3) Any person, firm, or corporation from using the:

(A) Name, voice, signature, photograph, or likeness of any manufacturer or dealer in connection with the goods, wares, and merchandise manufactured, produced, or dealt in by the person who has sold or disposed of while living with the name, voice, signature, photograph, or likeness used in connection therewith; or

(B) Name, voice, signature, photograph, or likeness of any author, composer, or artist in connection with the literary, musical, or artistic productions sold or disposed of while living with the name, voice, signature, photograph, or likeness used in connection therewith; and

(4) The copyright owner of a sound recording from disposing of, dealing in, licensing, or selling that sound recording to any party, if the right to dispose of, deal in, license, or sell the sound recording has been conferred by contract or other written documentation by the person having a right thereto or holding the right.

(n) The remedies under this section shall be cumulative and in addition to all other remedies provided by law.

(o) For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subsection (a).

(p) As used in this section:

"Deceased personality" means any natural person whose name, voice, signature, photograph, or likeness has commercial value at the time of the person's death, whether or not during the lifetime of that natural person the person used the person's name, voice, signature, photograph, or likeness on or in products, merchandise or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services. A deceased personality shall include, but not be limited to any natural person who has died within seventy years prior to June 30, 2004.

"Photograph" means any photograph or photographic reproduction, still or moving, or any videotape, digital download, digital video, Internet streaming video, or live television transmission, of any person or deceased personality, so that the person or deceased personality is readily identifiable. A person or deceased personality shall be deemed to be readily identifiable from a photograph when one who views the photograph with the naked eye can reasonably determine who is the person depicted in the photograph."

SECTION 3. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect on July 1, 2020.