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|[ Introduced ]||[ Enrolled ]||[ House Amendment 001 ]|
|[ Senate Amendment 002 ]|
90_HB1422eng New Act Creates the Right of Publicity Act with the short title as the only provision. LRB9003925PTpk HB1422 Engrossed LRB9003925PTpk 1 AN ACT concerning the right of publicity. 2 Be it enacted by the People of the State of Illinois, 3 represented in the General Assembly: 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, including but not limited 15 to (i) name, (ii) signature, (iii) photograph, (iv) image, 16 (v) likeness, or (vi) voice. 17 "Individual" means a living or deceased natural person, 18 regardless of whether the identity of that individual has 19 been used for a commercial purpose during the individual's 20 lifetime. 21 "Juristic person" means a partnership, trust, estate, 22 corporation, unincorporated association, or other 23 organization capable of suing and being sued in a court of 24 law. 25 "Name" means the actual name or other name by which an 26 individual is known that is intended to identify that 27 individual. 28 "Person" means a natural or juristic person. 29 "Work of Fine Art" means (i) a visual rendition 30 including, but not limited to, a painting, drawing, 31 sculpture, mosaic, videotape, or photograph; (ii) a work of HB1422 Engrossed -2- LRB9003925PTpk 1 calligraphy; (iii) a work of graphic art including, but not 2 limited to, an etching, lithograph, serigraph, or offset 3 print; (iv) a craft work in materials including, but not 4 limited to, clay, textile, fiber, wood, metal, plastic, or 5 glass; or (v) a work in mixed media including, but not 6 limited to, a collage, assemblage, or work consisting of any 7 combination of items (i) through (iv). 8 Section 10. Recognition of right of publicity. The right 9 to control and to choose whether and how to use an 10 individual's identity for commercial purposes is recognized 11 as each individual's right of publicity. 12 Section 15. Transferability, descendability, and 13 divisibility. The rights under this Act are property rights 14 that are freely transferable in whole or in part to any 15 person either by written transfer or by testate or intestate 16 succession or operation of law, except that the rights under 17 this Act are not subject to levy or attachment and may not be 18 the subject of a security interest. Nothing in this Section 19 limits the ability of any party to levy, attach, or obtain a 20 security interest in the proceeds of the rights under this 21 Act or the proceeds of the exercise of those rights. 22 Section 20. Enforcement of rights and remedies. 23 (a) The rights and remedies set forth in this Act may be 24 exercised and enforced by: 25 (1) an individual or his or her authorized 26 representative; 27 (2) a person to whom the recognized rights have 28 been transferred by written transfer under Section 15 of 29 this Act; or 30 (3) after the death of an individual who has not 31 transferred the recognized rights by written transfer HB1422 Engrossed -3- LRB9003925PTpk 1 under this Act, any person or persons who possesses an 2 aggregate of more than one-half interest in those rights. 3 (b) Each person described in paragraph (3) of subsection 4 (a) shall make a proportional accounting to, and shall act at 5 all times in good faith with respect to, any other person in 6 whom the rights being enforced have vested. 7 Section 25. Termination of rights of deceased 8 individual. The rights set forth in this Act terminate if: 9 (a) a deceased individual has not transferred his or her 10 rights under Section 15 of this Act; and 11 (b) there is no known kindred. 12 Section 30. Limitations regarding use of an individual's 13 identity. 14 (a) A person may not use an individual's identity for 15 commercial purposes during the individual's lifetime without 16 having obtained previous written consent from the appropriate 17 person or persons specified in Section 20 of this Act or 18 their authorized representative. 19 (b) If an individual's death occurs after the effective 20 date of this Act, a person may not use that individual's 21 identity for commercial purposes for 50 years after the date 22 of the individual's death without having obtained previous 23 written consent from the appropriate person or persons 24 specified in Section 20 of this Act. 25 Section 35. Applicability. 26 (a) This Act applies to acts or events that take place 27 after the effective date of this Act. 28 (b) This Act does not apply to the following: 29 (1) use of an individual's identity in an attempt 30 to portray, describe, imitate, simulate, or impersonate 31 that individual in a live performance, a single and HB1422 Engrossed -4- LRB9003925PTpk 1 original work of fine art, play, book, article, musical 2 work, film, radio, television, or other audio or visual 3 program, provided that the performance, work, or program 4 does not constitute in and of itself a commercial 5 advertisement for a product, merchandise, goods, or 6 services; 7 (2) use of an individual's identity for 8 non-commercial purposes, including any news, public 9 affairs, or sports broadcast or account, or any political 10 campaign; 11 (3) use of an individual's name in truthfully 12 identifying the person as the author of a particular work 13 or program or the performer in a particular performance; 14 (4) promotional materials, advertisements, or 15 commercial announcements for a use described under 16 paragraph (1), (2), or (3) of this subsection; or 17 (5) use of photographs, videotapes, and images by a 18 person, firm, or corporation practicing the profession of 19 photography ("professional photographer") to exhibit in 20 or about the professional photographer's place of 21 business or portfolio, specimens of the professional 22 photographer's work, unless the exhibition is continued 23 by the professional photographer after written notice 24 objecting to the exhibition has been given by the 25 individual portrayed. 26 Section 40. Violations; monetary relief. 27 (a) A person who violates Section 30 of this Act may be 28 liable for either of the following, whichever is greater: 29 (1) actual damages and profits derived from the 30 unauthorized use; or 31 (2) $1,000. 32 (b) Punitive damages may be awarded against a person 33 found to have willfully violated Section 30 of this Act. HB1422 Engrossed -5- LRB9003925PTpk 1 Section 45. Establishment of profits. In establishing 2 profits under paragraph (1) of subsection (a) of Section 40 3 of this Act: 4 (a) the plaintiff is required to prove the damages or 5 gross revenue attributable to the unauthorized use; and 6 (b) the defendant is required to prove properly 7 deductible expenses. 8 Section 50. Injunctive relief. Upon a showing of cause as 9 required by Article XI of the Code of Civil Procedure for the 10 issuance of injunctive relief, the court may issue such 11 temporary restraining orders, preliminary injunctions, and 12 permanent injunctions as may be appropriate under this Act. 13 Section 55. Attorney's fees; costs. The court may award 14 to the prevailing party reasonable attorney's fees, costs, or 15 expenses relating to an action under this Act. 16 Section 60. Rights and remedies. The rights and remedies 17 provided for in this Act are meant to supplant those 18 available under the common law as of the effective date of 19 this Act, but do not affect an individual's common law rights 20 for acts taking place before the effective date of this Act. 21 Except for the common law right of publicity, the rights and 22 remedies provided under this Act are supplemental to any 23 other rights and remedies provided by law.
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