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. Every
individual or personality, as the case may be, has a property right in the use
of his or her name, voice, signature, photograph, or likeness, and such right
shall be freely transferable, assignable, and licensable, in whole or in part,
by any otherwise permissible form of inter vivos or testamentary transfer,
including without limitation a will, trust, contract, community property
agreement, or cotenancy with survivorship provisions or payable‑on‑death
provisions, or, if none is applicable, under the laws of intestate succession
applicable to interests in intangible personal property. The property right
does not expire upon the death of the individual or personality, as the case
may be. The right exists whether or not it was commercially exploited by the
individual or the personality during the individual's or the personality's
lifetime.
NEW
SECTION. Sec. 2.
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 soliciting
the purchase or sale of, products, merchandise, goods, or services. A
"deceased personality" includes, without limitation, any such
individual who has died within fifty years before January 1, 1998.
(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, musical, or stage
production; or a performing group or sports 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. 3. (1)
Every individual or personality, as the case may be, has a property right in
the use of his or her name, voice, signature, photograph, or likeness, 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 or personality, as the case may be, so protected but shall
pass:
(a)
Under the deceased individual's or personality's, as the case may be, last will
and testament or, if none, then under the laws of intestate succession
applicable to interests in intangible personal property of the individual's or
personality's, as the case may be, domicile; or
(b)
If the individual or personality, as the case may be, transferred or assigned
any interest in the personality rights during his or her life, then the
transferred or assigned interest shall pass as follows:
(i)
If the transferred or assigned interest was held in trust, in accordance with
the terms of the trust;
(ii)
If the interest is subject to a cotenancy with any survivorship provisions or
payable‑on‑death provisions, in accordance with those provisions;
(iii)
If the interest is subject to any contract, including without limitation a
community property agreement, in accordance with the terms of the applicable
contract or contracts;
(iv)
If the interest has been transferred or assigned to a third person in a form
that is not addressed earlier in this section, then the interest may be
transferred, assigned, or licensed by such third person, in whole or in part,
by any otherwise permissible form of inter vivos or testamentary transfer or,
if none is applicable, under the laws of intestate succession applicable to
interests in intangible personal property of the third person's domicile.
(2)
A property right exists whether or not such rights were commercially exploited
by the individual or the personality during the individual's or the
personality's, as the case may be, lifetime.
NEW
SECTION. Sec. 4. (1)
For individuals, except to the extent that the individual may have assigned or
licensed such rights, 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 are exclusive to the persons entitled to such rights
under section 3 of this act for a period of ten years after the death of the
individual except to the extent that the persons entitled to such rights under
section 3 of this act may have assigned or licensed such rights to others.
(2)
For personalities, except to the extent that the personality may have assigned
or licensed such rights, 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 persons entitled to such rights under
section 3 of this act for a period of seventy‑five years after the death
of the personality except to the extent that the persons entitled to such
rights under section 3 of this act may have assigned or licensed such rights to
others.
(3)
The rights granted in this chapter may be exercised by a personal
representative, attorney in fact, or guardian, or as authorized by a court of
competent jurisdiction. The terms "personal representative",
"attorney in fact", and "guardian" shall have the same
meanings in this chapter as they have in Title 11 RCW.
NEW
SECTION. Sec. 5. Any
person who uses or authorizes the use of a living or deceased individual's or
personality's name, voice, signature, photograph, or likeness, 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 disseminates or
publishes such advertisements in this state, without written or oral, express
or implied 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. 6. (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. For the purposes of
computing statutory damages, use of a name, voice, signature, photograph,
and/or likeness in or related to one work constitutes a single act of
infringement regardless of the number of copies made or the number of times the
name, voice, signature, photograph, or likeness is displayed.
(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. 7. (1)
For purposes of section 5 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. A
matter exempt from consent under this subsection does not lose such exempt
status because it appears in the form of a paid advertisement if it is clear
that the principal purpose of the advertisement is to comment on such matter.
(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 claim 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, voice, signature,
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 the use of
an individual's or personality's name, voice, signature, photograph, or
likeness includes more than one individual or personality so identifiable.
However, the individuals or personalities complaining of the use shall not
bring their cause of action as a class action.
(4)
Section 5 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 the advertisement or solicitation was
intended to promote the medium itself.
(5)
This chapter does not apply to a use or authorization of use of an individual's
or personality's name that is merely descriptive and used fairly and in good
faith only to identify or describe something other than the individual or
personality, such as, without limitation, to describe or identify a place, a
legacy, a style, a theory, an ownership interest, or a party to a transaction
or to accurately describe the goods or services of a party.
(6)
This chapter does not apply to the use of an individual's or personality's
name, voice, signature, photograph, or likeness when the use of the
individual's or personality's name, voice, signature, photograph, or likeness
is an insignificant, de minimis, or incidental use.
NEW
SECTION. Sec. 8.
Nothing contained in this chapter is intended to invalidate any community
property rights.
NEW SECTION. Sec. 9.
Sections 1 through 8 of this act constitute a new chapter in Title 63 RCW.
