BP BHEAD INT H [Atlas:Generic]

AN ACT Relating to the protection of personality rights; adding a new chapter to Title 63 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Deceased personality" means any individual whose name, voice, signature, photograph, or likeness had commercial value at the time of his or her death, whether or not during the lifetime of that individual he or she used his or her 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" includes, without limitation, any such individual who has died within fifty years prior to January 1, 1995.

(2) "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, the audience at any theatrical or stage production, a musical group, or a baseball team.

(3) "Fund raising" means an organized activity to solicit donations of money or other goods or services from persons or entities by an organization, company, or public entity. A fund-raising activity does not include a live, public performance by an individual or group of individuals for which money is received in solicited or unsolicited gratuities.

(4) "Individual" means a natural person, living or dead.

(5) "Likeness" means an image, painting, sketching, model, diagram, or other clear representation, other than a photograph, of an individual's face, body, or parts thereof, or the distinctive appearance, gestures, or mannerisms of an individual.

(6) "Name" means the actual or assumed name, or nickname, of a living or deceased individual that is intended to identify that individual.

(7) "Person" means any natural person, 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, and community, civic, or other organizations.

(8) "Personality" means any individual whose name, voice, signature, photograph, or likeness has commercial value, whether or not that individual uses his or her 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.

(9) "Photograph" means any photograph or photographic reproduction, still or moving, or any videotape, online or live television transmission, of any individual, so that the individual is readily identifiable.

(10) "Signature" means the one handwritten or otherwise legally binding form of an individual's name, written or authorized by that individual, that distinguishes the individual from all others.

NEW SECTION. Sec. 2. (1) Every individual residing in this state has a property right in the use of his or her name, voice, signature, photograph, or likeness in any medium in any manner, and such right shall be freely transferable, assignable, and licensable, in whole or in part, by contract or inter vivos transfer, and shall not expire upon the death of the individual so protected but shall be descendible to the heirs or devisees of the individual protected by subsection (3) of this section. A property right exists whether or not such rights were commercially exploited by the individual during the individual's lifetime.

(2) Every personality has a property right in the use of his or her name, voice, signature, photograph, or likeness in any medium in any manner, and such right shall be freely transferable, assignable, and licensable, in whole or in part, by contract or inter vivos transfer, and shall not expire upon the death of the personality so protected, but shall be descendible to the heirs or devisees of the personality protected by subsection (3) of this section. A property right exists whether or not such rights were commercially exploited by the personality during the personality's lifetime.

(3) The rights in a deceased individual's or a deceased personality's name, voice, signature, photograph, or likeness and the other rights afforded under this section shall be owned by the following persons and may be exercised, on behalf of and for the benefit of all, by those persons or individuals who, in the aggregate, are entitled to more than a one-half interest in the rights:

(a) The assignee or transferee of such rights, provided that such assignment or transfer was made in writing and signed by the individual or personality prior to his or her death;

(b) In the absence of a transfer prior to death, the rights shall pass pursuant to the will or other testamentary document of the deceased individual or deceased personality; and

(c) If there are no persons entitled to the rights pursuant to (a) or (b) of this subsection, the laws of intestate succession of the state administering the estate and property of the deceased individual or deceased personality shall apply, regardless of whether the state recognizes the property rights in name, voice, signature, photograph, or likeness.

(4) If there are no surviving persons as described in subsection (3) of this section, the rights then shall terminate.

NEW SECTION. Sec. 3. (1) The rights protected in this chapter are exclusive to the individual, subject to the assignment or licensing of such rights, during such individual's lifetime and to the class entitled to such rights under section 2 of this act for a period of ten years after the death of the individual.

(2) For personalities, the rights protected in this chapter are exclusive to the personality, subject to the assignment or licensing of such rights, during such personality's lifetime and to the class entitled to such rights under section 2 of this act for a period of seventy-five years after the death of the personality.

(3) The rights in an individual's name, voice, signature, photograph, or likeness shall terminate if it can be shown that, after the death of the individual, such rights have not been commercially exploited for a period of three consecutive years. This subsection shall not apply to deceased personalities.

(4) For three years after the death of the individual or personality, the rights granted in this chapter may be exercised by an executor, administrator, or guardian, as authorized by a court or by law.

NEW SECTION. Sec. 4. Any person who uses or authorizes the use of a living or deceased individual's or personality's name, voice, signature, photograph, or likeness in any medium, in any manner, on or in goods, merchandise, or products entered into commerce in this state, or for purposes of advertising products, merchandise, goods, or services, or for purposes of fund raising or solicitation of donations, or if any person transports such goods into or disseminates or publishes such advertisements in this state, without the prior written consent of the owner of the right, has infringed such right. An infringement may occur under this section without regard to whether the use or activity is for profit or not for profit.

NEW SECTION. Sec. 5. (1) The superior courts of this state may grant injunctions on reasonable terms to prevent or restrain the unauthorized use of the rights in a living or deceased individual's or personality's name, voice, signature, photograph, or likeness.

(2) Any person who infringes the rights under this chapter shall be liable for the greater of one thousand five hundred dollars or the actual damages sustained as a result of the infringement, and any profits that are attributable to the infringement and not taken into account when calculating actual damages. To prove profits under this section, the injured party or parties must submit proof of gross revenues attributable to the infringement, and the infringing party is required to prove his or her deductible expenses.

(3) At any time while an action under this chapter is pending, the court may order the impounding, on reasonable terms, of all materials or any part thereof claimed to have been made or used in violation of the injured party's rights, and the court may enjoin the use of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

(4) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the injured party's rights, and of all plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such materials may be reproduced.

(5) The prevailing party may recover reasonable attorneys' fees, expenses, and court costs incurred in recovering any remedy or defending any claim brought under this section.

(6) The remedies provided for in this section are cumulative and are in addition to any others provided for by law.

NEW SECTION. Sec. 6. (1) For purposes of section 4 of this act, the use of a name, voice, signature, photograph, or likeness in connection with matters of cultural, historical, political, religious, educational, newsworthy, or public interest, including, without limitation, comment, criticism, satire, and parody relating thereto, shall not constitute a use for which consent is required under this chapter.

(2) This chapter does not apply to the use or authorization of use of an individual's or personality's name, voice, signature, photograph, or likeness, in any of the following:

(a) Single and original works of fine art, including but not limited to photographic, graphic, and sculptural works of art that are not published in more than five copies;

(b) A literary work, theatrical work, musical composition, film, radio, online or television program, magazine article, news story, public affairs report, or sports broadcast or account, or with any political campaign when the use does not inaccurately suggest or state an endorsement by the individual or personality;

(c) An advertisement or commercial announcement for a use permitted by subsection (1) of this section and (a) or (b) of this subsection;

(d) An advertisement, commercial announcement, or packaging for the authorized sale, distribution, performance, broadcast, or display of a literary, musical, cinematographic, or other artistic work using the name, photograph, or likeness of the writer, author, composer, director, actor, or artist who created the work, where such individual or personality consented to the use of his or her name, voice, signature, photograph, or likeness on or in connection with the initial sale, distribution, performance, or display thereof; and

(e) The advertisement or sale of a rare or fine product, including but not limited to books, which incorporates the signature of the author.

(3) It is no defense to an infringement action under this chapter that a photograph includes more than one individual or personality so identifiable. However, the individuals or personalities complaining of the use shall be represented on their own rather than solely as members of a definable group represented in the photograph.

(4) Section 4 of this act does not apply to the owners or employees of any medium used for advertising, including but not limited to, newspapers, magazines, radio and television stations, on-line service providers, billboards, and transit ads, who have published or disseminated any advertisement or solicitation in violation of this chapter, unless it is established that such owners or employees had knowledge of the unauthorized use of the name, voice, signature, photograph, or likeness as prohibited by this chapter or that the advertisement or solicitation was intended to promote the medium itself.

NEW SECTION. Sec. 7. Sections 1 through 6 of this act constitute a new chapter in Title 63 RCW.