Illinois General Assembly - Full Text of HB4875
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Full Text of HB4875  103rd General Assembly

HB4875sam003 103RD GENERAL ASSEMBLY

Sen. Mary Edly-Allen

Filed: 5/14/2024

 

 


 

 


 
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1
AMENDMENT TO HOUSE BILL 4875

2    AMENDMENT NO. ______. Amend House Bill 4875, AS AMENDED,
3by replacing everything after the enacting clause with the
4following:
 
5    "Section 5. The Right of Publicity Act is amended by
6changing Sections 5, 20, 30, and 35 as follows:
 
7    (765 ILCS 1075/5)
8    Sec. 5. Definitions. As used in this Act:
9    "Artificial intelligence" means a machine-based system
10that, for explicit or implicit objectives, infers, from the
11input it receives, how to generate outputs such as
12predictions, content, recommendations, or decisions that can
13influence physical or virtual environments. "Artificial
14intelligence" includes generative artificial intelligence.
15    "Commercial purpose" means the public use or holding out
16of an individual's identity (i) on or in connection with the

 

 

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1offering for sale or sale of a product, merchandise, goods, or
2services; (ii) for purposes of advertising or promoting
3products, merchandise, goods, or services; or (iii) for the
4purpose of fundraising.
5    "Application software provider" means a person providing a
6digital distribution service for other software applications
7and that allows users to search for and download such
8applications.
9    "Cloud service provider" means a cloud service provider as
10defined by 6 U.S.C. 650.
11    "Digital replica" means a newly created, electronic
12representation of the voice, image, or likeness of an actual
13individual created using a computer, algorithm, software,
14tool, artificial intelligence, or other technology that is
15fixed in a sound recording or audiovisual work in which that
16individual did not actually perform or appear, and which a
17reasonable person would believe is that particular
18individual's voice, image, or likeness being imitated.
19    "Generative artificial intelligence" means an automated
20computing system that, when prompted with human prompts,
21descriptions, or queries, can produce outputs that simulate
22human-produced content, including, but not limited to, the
23following:
24        (1) textual outputs, such as short answers, essays,
25    poetry, or longer compositions or answers;
26        (2) image outputs, such as fine art, photographs,

 

 

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1    conceptual art, diagrams, and other images;
2        (3) multimedia outputs, such as audio or video in the
3    form of compositions, songs, or short-form or long-form
4    audio or video; and
5        (4) other content that would be otherwise produced by
6    human means.
7    "Identity" means any attribute of an individual that
8serves to identify that individual to an ordinary, reasonable
9viewer or listener, including but not limited to: (i) name,
10(ii) signature, (iii) photograph, (iv) image, (v) likeness, or
11(vi) voice.
12    "Individual" means a living or deceased natural person,
13regardless of whether the identity of that individual has been
14used for a commercial purpose during the individual's
15lifetime.
16    "Juristic person" means a partnership, trust, estate,
17corporation, unincorporated association, or other organization
18capable of suing and being sued in a court of law.
19    "Name" means the actual name or other name by which an
20individual is known that is intended to identify that
21individual.
22    "Person" means a natural or juristic person. "Person" only
23includes a service provider under subsections (b) and (d) of
24Section 30 if the service provider created the unauthorized
25digital replica. "Person" does not include a data center, as
26defined by the Department of Commerce and Economic Opportunity

 

 

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1Law of the Civil Administrative Code of Illinois, under
2subsections (b) and (d) of Section 30.
3    "Service provider" means any entity offering broadband
4service as that term is used in Section 10 of the Broadband
5Advisory Council Act, a wireless carrier as defined by 47
6U.S.C. 615b(4), or a telecommunication carrier as that term is
7used in Section 13-202 of the Public Utilities Act.
8    "Unauthorized digital replica" means the use of a digital
9replica of an individual without the consent of the
10appropriate person or persons identified in Section 20 or
11their authorized representative.
12    "Work of Fine Art" means (i) a visual rendition including,
13but not limited to, a painting, drawing, sculpture, mosaic,
14videotape, or photograph; (ii) a work of calligraphy; (iii) a
15work of graphic art including, but not limited to, an etching,
16lithograph, serigraph, or offset print; (iv) a craft work in
17materials including, but not limited to, clay, textile, fiber,
18wood, metal, plastic, or glass; or (v) a work in mixed media
19including, but not limited to, a collage, assemblage, or work
20consisting of any combination of items (i) through (iv).
21(Source: P.A. 90-747, eff. 1-1-99.)
 
22    (765 ILCS 1075/20)
23    Sec. 20. Enforcement of rights and remedies.
24    (a) The rights and remedies set forth in this Act may be
25exercised and enforced by:

 

 

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1        (1) an individual or his or her authorized
2    representative;
3        (2) a person to whom the recognized rights have been
4    transferred by written transfer under Section 15 of this
5    Act; or
6        (3) after the death of an individual who has not
7    transferred the recognized rights by written transfer
8    under this Act, any person or persons who possesses an
9    interest in those rights.
10    (a-5) In addition to the enforcement of rights and
11remedies in subsection (a), the rights and remedies set forth
12in this Act may, in the case of an individual who is a
13recording artist, be enforced by:
14        (1) the individual who is the recording artist; or
15        (2) a person who has entered into a contract for the
16    individual's exclusive personal services as a recording
17    artist or who has entered into a contract for an exclusive
18    license to distribute sound recordings that capture the
19    recording artist's audio performances.
20    (b) Each person described in paragraph (3) of subsection
21(a) shall make a proportional accounting to, and shall act at
22all times in good faith with respect to, any other person in
23whom the rights being enforced have vested.
24(Source: P.A. 90-747, eff. 1-1-99.)
 
25    (765 ILCS 1075/30)

 

 

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1    Sec. 30. Limitations regarding use of an individual's
2identity.
3    (a) A person may not use an individual's identity for
4commercial purposes during the individual's lifetime without
5having obtained previous written consent from the appropriate
6person or persons specified in Section 20 of this Act or their
7authorized representative.
8    (b) A person may not knowingly distribute, transmit, or
9make available to the general public a sound recording or
10audiovisual work with actual knowledge that the work contains
11an unauthorized digital replica.
12    (c) If an individual's death occurs after the effective
13date of this Act, a person may not use that individual's
14identity or digital replica in violation of this Act for
15commercial purposes for 50 years after the date of the
16individual's death without having obtained previous written
17consent from the appropriate person or persons specified in
18Section 20 of this Act.
19    (d) Any person who materially contributes to, induces, or
20otherwise facilitates a violation of subsection (b) by another
21person after having obtained actual knowledge that the other
22person is infringing upon an individual's rights under this
23Section may be found liable for the violation.
24    (e) Subsection (d) does not apply to a person that solely
25transmits, stores, or provides access to data or software,
26including interactive entertainment software, application

 

 

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1software providers, or cloud service providers with respect to
2any unauthorized digital replica stored or transmitted at the
3direction of a user of material that resides on a system or
4network, if the person:
5        (1) does not have actual knowledge that the material
6    or an activity using the material on the system or network
7    is unauthorized;
8        (2) in the absence of such actual knowledge, does not
9    willfully disregard facts or circumstances that would
10    create actual knowledge; or
11        (3) upon obtaining actual knowledge, facts or
12    circumstances that would create actual knowledge, or
13    written notification of claimed unauthorized activity,
14    acts expeditiously to remove or disable access to the
15    material that is the subject of infringing activity; if
16    the person does not personally have the ability to remove
17    or disable access to the material, the person acts
18    expeditiously to notify the person that has the ability to
19    remove or disable access to the material. As used in this
20    subsection, "expeditiously" has the same meaning as it
21    does in 17 U.S.C. 512.
22    (f) Subject to the limitations in subsection (e), all of
23the elements of 17 U.S.C. 512 shall be incorporated mutatis
24mutandis with respect to claims relating to unauthorized
25digital replicas. This exemption shall apply without regard to
26whether the unauthorized version infringes copyright.

 

 

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1    (g) Nothing in this Act may be construed in a manner
2inconsistent with 47 U.S.C. 230 or any other federal law.
3(Source: P.A. 90-747, eff. 1-1-99.)
 
4    (765 ILCS 1075/35)
5    Sec. 35. Applicability.
6    (a) This Act applies to acts or events that take place
7after the effective date of this Act.
8    (b) Subsections (a) and (c) of Section 30 do This Act does
9not apply to the following:
10        (1) use of an individual's identity in an attempt to
11    portray, describe, or impersonate that individual in a
12    live performance, a single and original work of fine art,
13    play, book, article, musical work, film, radio,
14    television, or other audio, visual, or audio-visual work,
15    provided that the performance, work, play, book, article,
16    or film does not constitute in and of itself a commercial
17    advertisement for a product, merchandise, goods, or
18    services;
19        (2) use of an individual's identity for non-commercial
20    purposes, including any news, public affairs, or sports
21    broadcast or account, or any political campaign;
22        (3) use of an individual's name in truthfully
23    identifying the person as the author of a particular work
24    or program or the performer in a particular performance;
25        (4) promotional materials, advertisements, or

 

 

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1    commercial announcements for a use described under
2    paragraph (1), (2), or (3) of this subsection; or
3        (5) use of photographs, videotapes, and images by a
4    person, firm, or corporation practicing the profession of
5    photography ("professional photographer") to exhibit in or
6    about the professional photographer's place of business or
7    portfolio, specimens of the professional photographer's
8    work, unless the exhibition is continued by the
9    professional photographer after written notice objecting
10    to the exhibition has been given by the individual
11    portrayed.
12    (c) Subsections (b) and (c) of Section 30 do not apply to
13the use of identity or digital replicas in the following:
14        (1) news, public affairs, or a sports broadcast or
15    account, or any political campaign;
16        (2) for a purpose that has political, public interest,
17    educational, or newsworthy value, unless use of the
18    audiovisual digital replica is intended to create, and
19    does create, the false impression to a reasonable viewer
20    or listener that the work is an authentic recording in
21    which the individual participated;
22        (3) use of a digital replica to depict the individual
23    in a documentary, docudrama, or historical or biographical
24    audiovisual work, or any other representation of the
25    individual as such individual, regardless of the degree of
26    fictionalization, unless the use of the audiovisual

 

 

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1    digital replica creates the false impression to a
2    reasonable viewer or listener that the digital replica is
3    an authentic recording or that the individual participated
4    in the work, including, for example, in a live performance
5    of a musical work an individual did not participate in;
6        (4) use of digital replica for the purposes of
7    comment, criticism, scholarship, satire, or parody; or
8        (5) promotional materials, advertisements, or
9    commercial announcements for a use described in paragraphs
10    (1), (2), (3), and (4).
11    (d) The provisions of this amendatory Act of the 103rd
12General Assembly do not apply to any action filed before, nor
13to any action pending on, its effective date.
14(Source: P.A. 90-747, eff. 1-1-99.)".