SB197

By Senator Smitherman

ENROLLED, An Act,

To create the Alabama Right of Publicity Act; to statutorily define the right, the elements and scope of liability for its infringement, define the remedies available, and set forth defenses; to provide that there is a right of publicity in any indicia of identity of every person which endures for the life of the person and for 55 years after death; to provide that the right is freely transferable and descendible; to further provide for liability for persons who wrongfully use another person's indicia of identity whether or not for profit; to provide for defenses from liability under certain circumstances; and to provide that a person who establishes by substantial evidence that his or her right of publicity has been violated would be entitled to statutory damages in the amount of $5,000, or actual damages at his or her election, and any other damages available under law.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. This act shall be known and may be cited as the Alabama Right of Publicity Act.

Section 2. For the purposes of this act, the following terms shall have the following meanings unless the context clearly indicates otherwise:

(1) INDICIA OF IDENTITY. Include those attributes of a person that serve to identify that person to an ordinary, reasonable viewer or listener, including, but not limited to, name, signature, photograph, image, likeness, voice, or a substantially similar imitation of one or more of those attributes.

(2) PERSON. A natural person or a deceased natural person who at any time resided in this state or died while in this state or whose estate is, or was, probated in any county in this state.

(3) RIGHT OF PUBLICITY. There is a right of publicity in any indicia of identity, both singular and plural, of every person, whether or not famous, which right endures for the life of the person and for 55 years after his or her death, whether or not the person commercially exploits the right during his or her lifetime. The right is freely transferable and descendible, in whole or in part, and shall be considered property of the estate of the decedent unless otherwise transferred.

Section 3. (a) Except as otherwise provided in this act, any person or entity who uses or causes the use of the indicia of identity of a person, on or in products, goods, merchandise, or services entered into commerce in this state, or for purposes of advertising or selling, or soliciting purchases of, products, goods, merchandise, or services, or for purposes of fund-raising or solicitation of donations, or for false endorsement, without consent shall be liable under this act to that person, or to a holder of that person’s rights.

(b) Liability may be found under this section without regard as to whether the use is for profit or not for profit.

Section 4. (a) Nothing in this act will allow for an abridgement of free speech rights under the First Amendment of the United States Constitution and Section 4 of the Constitution of Alabama of 1901.

(b) It is a fair use and not a violation of Section 3 if the use of the indicia of identity is in connection with a news, public affairs, or public interest account, political speech or a political campaign, live or prerecorded broadcast or streaming of a sporting event or photos, clips, or highlights included in broadcasts or streaming of sports news or talk shows, or documentaries, or any advertising or promotion of the same (public interest work), or is part of an artistic or expressive work, such as a live performance, work of art, literary work, theatrical work, musical work, audiovisual work, motion picture, film, television program, radio program or the like (artistic work), or any advertising or promotion of the same, unless the claimant proves, subject to subsection (a), that the use in an artistic work is such a replica as to constitute a copy of the person's indicia of identity for the purposes of trade.

(c) With respect to advertising and promotion of public interest works and artistic works, except for the advertising or promotion of a public interest work itself as permitted by subsection (b), it shall not be deemed a fair use if the claimant proves that his or her indicia of identity has been directly connected to and affirmatively used in a commercial manner to advertise, promote, or endorse a product, good, or service.

(d) The commercial use of a person's indicia of identity in a commercial medium does not constitute a violation of Section 3 if the material containing the commercial use is authorized by the person or the person's authorized representative or agent for commercial sponsorship or paid advertising.

(e) It is not a fair use and is a violation of Section 3 if a person's indicia of identity is used, without such person's permission, in a manner stating or implying that such person has endorsed or supports a candidate for public office.

(f) Those who lawfully obtain authorized products containing indicia of identity are not liable under this section for their resale of such products.

(g) Any action brought pursuant to this act shall be commenced within two years from the act or omission giving rise to the claim. If the cause of action is not discovered and could not reasonably have been discovered within that time period, then the action may be commenced within six months from the date of such discovery or the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. In no event may the action be commenced more than four years after the act or omission giving rise to the claim.

Section 5. A plaintiff, who establishes by a preponderance of the evidence that his or her right of publicity has been violated, shall be eligible to receive the following damages, remedies, and relief:

(1) Monetary relief. The measure of damages shall be:

a. Statutory damages in the amount of five thousand dollars ($5,000) per an action or compensatory damages, including the defendant’s profits derived from such use. The plaintiff, within a reasonable time after the close of discovery, shall elect whether to claim statutory damages or to instead receive such monetary relief as the fact finder may independently determine to award in accordance with this section.

b. Any other damages available under Alabama law, including punitive damages. An election of statutory damages does not preclude the recovery of punitive damages if such damages are available under Alabama law.

(2) Injunctive relief. A violation of this act is deemed to constitute a rebuttable presumption of irreparable harm for the purposes of injunctive relief.

Section 6. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Civil Actions

Right of Publicity Act

Civil Law

Damages

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