SB1005 HD1.DOC

SECTION 1. Notwithstanding any existing copyright law concerning sound recordings, the purpose of this Act is to protect the music of Hawaii, and all other works of authorship, by establishing a property right in the commercial use of a person's name, voice, signature, photograph, or likeness. This right, generally called a "right of publicity," protects an individual or personality from the unauthorized appropriation by promoters and marketers of the music of Hawaii, without the permission of the artists or their heirs, and the sale of products that feature the artist's name, voice, signature, photograph, or likeness but are objectionable to the artists or heirs.

SECTION 2. The Hawaii Revised Statutes is amended by adding a new chapter to be appropriately designated and to read as follows:
"CHAPTER

PUBLICITY RIGHTS

§ ‑1 Definitions. As used in this chapter, unless the context clearly requires otherwise:

"Deceased individual" means any individual, regardless of the individual's place of domicile, residence, or citizenship at the time of death or otherwise, who has died.

"Deceased personality" means any individual, regardless of the personality's place of domicile, residence, or citizenship at the time of death or otherwise, whose name, voice, signature, photograph, or likeness had commercial value at the time of the individual's death, whether or not during the lifetime of that individual, the individual used the individual's name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting the purchase or sale of products, merchandise, goods, or services.

"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.

"Individual" means a natural person, living or dead.

"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.

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

"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 nonprofit corporations, associations, educational and religious institutions, political parties, and community, civic, or other organizations.

"Personality" means any individual whose name, voice, signature, photograph, or likeness has commercial value, whether or not that individual uses the individual's name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising, selling, or soliciting the purchase of products, merchandise, goods, or services.

"Photograph" means any photograph or photographic reproduction, still or moving, or any videotape, online or live television transmission, of any individual, in which the individual is readily identifiable.

"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.

§ ‑2 Property right in use of name, voice, signature, photograph, or likeness. Beginning August 1, 2009, every individual or personality has a property right in the use of the individual's or personality's name, voice, signature, photograph, or likeness. This right exists in the name, voice, signature, photograph, or likeness of individuals or personalities living or deceased. This 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 or other testamentary instrument, trust, contract, community property agreement, or cotenancy with survivorship provisions or payable-on-death provisions, whether the will or other testamentary instrument, trust, contract, community property agreement, or cotenancy document is entered into or executed by the deceased individual or personality or by any subsequent owner of the deceased individual's or personality's rights as recognized by this chapter; or, if none is applicable, then the owner of the rights shall be determined 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, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death or otherwise recognizes a similar or identical property right. The right exists whether or not it was commercially exploited by the individual or the personality during the individual or the personality's lifetime. This chapter is intended to apply to all individuals and personalities, living and deceased, regardless of place of domicile or place of domicile at time of death. In the case of a deceased individual or personality, the rights recognized under this chapter shall be deemed to exist at the time of death of any deceased individual or personality or subsequent successor of their rights for the purpose of determining the person or persons entitled to these property rights as provided for in section ‑3.

§ ‑3 Transfer, assignment, and license. (a) Beginning August 1, 2009, every individual or personality has a property right in the use of the individual or personality's name, voice, signature, photograph, or likeness. This right shall be freely transferable, assignable, and licensable, in whole or in part, by contract or inter vivos transfer. This right shall not expire upon the death of the individual or personality, but shall be owned and enforceable by the following successors, heirs, or other transferees of living or deceased individuals or personalities:

(1) Except where rights were transferred or assigned before the deceased personality's death by means of any contract or trust instrument, the right shall be owned by the person entitled to the rights under the deceased individual's or personality's last will and testament or, if none, then by the beneficiaries or heirs under the laws of intestate succession applicable to interests in intangible personal property generally of the individual or personality's domicile, regardless of whether the law of the domicile of the deceased individual or personality, at the time of death, or thereafter, recognizes a similar or identical property right; or

(2) If the deceased individual or personality transferred or assigned any interest in the personality rights during the individual or personality's life by means of any contract or trust instrument, then the transferred or assigned interest shall be held as follows:

(A) If the transferred or assigned interest was held in trust, in accordance with the terms of the trust;

(B) If the interest is subject to a cotenancy with any survivorship provisions or payable-on-death provisions, in accordance with those provisions;

(C) If the interest is subject to any contract, including without limitation an exclusive license, assignment, or a community property agreement, in accordance with the terms of the applicable contract or contracts; or

(D) If the interest has been transferred or assigned to a third person in a form that is not addressed in this section, by the individual or personality, or the successor, heir, or other transferee of the living or deceased individual or personality, then the interest may be transferred, assigned, or licensed by that 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, regardless of whether the law of the domicile of the deceased third party, at the time of death, or thereafter, recognizes a similar or identical property right.

(b) A property right exists whether or not those rights were commercially exploited by or under the authority of the individual or the personality, or the individual or personality's successors or transferees, during the individual or the personality's lifetime.

§ ‑4 Right is exclusive for individuals and personalities. (a) For individuals, except to the extent that the individual may have assigned or licensed the rights, the rights protected in this chapter are exclusive to the individual, subject to the assignment or licensing of the rights during the individual's lifetime, and are exclusive to the persons entitled to the rights under section ‑3 for a period of twenty years after the death of the individual, including to the extent that the persons entitled to the rights under section ‑3 may have assigned or licensed these rights to others.

(b) For personalities, except to the extent that the personality may have assigned or licensed the rights, the rights protected in this chapter are exclusive to the personality, subject to the assignment or licensing of the rights during the personality's lifetime, and to the persons entitled to these rights under section ‑3 for a period of seventy years after the death of the personality, including to the extent that the persons entitled to these rights under section ‑3 may have assigned or licensed these rights to others.

(c) The rights granted in this chapter may be exercised by a personal representative, attorney-in-fact, parent of a minor child, 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 as in chapter 560.

§ ‑5 Infringement of right; use without consent; profit or not for profit. Beginning August 1, 2009, any person who uses or authorizes the use of a living or deceased individual 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 advertisements in this state that contain a living or deceased individual or personality's name, voice, signature, photograph, or likeness, without written or oral, express or implied consent of the owner of the right, has infringed this right. An infringement may occur under this section without regard to whether the use or activity is for profit or not for profit.

§ ‑6 Infringement of right; circuit courts; injunctions; liability for damages and profits; impoundment; destruction; attorneys' fees. (a) Beginning August 1, 2009, the circuit 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 or personality's name, voice, signature, photograph, or likeness.

(b) Any person who infringes the rights under this chapter shall be liable for the greater of $10,000 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 subsection, the injured party or parties shall submit proof of gross revenues attributable to the infringement, and the infringing party is required to prove the infringing party's deductible expenses. For the purposes of computing statutory damages, the use of a name, voice, signature, photograph, 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.

(c) 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, master recordings, copies of recordings, optical disk stampers, or other articles by means of which these materials may be reproduced.

(d) 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, master recordings, copies of recordings, optical disk stampers, or other articles by means of which these materials may be reproduced.

(e) 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.

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

§ ‑7 Exemptions from use restrictions; when chapter does not apply. (a) For purposes of section ‑5, 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 its 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 the matter.

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

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

(2) 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;

(3) An advertisement or commercial announcement for a use permitted by subsection (a) or (g) or paragraph (1) or (2);

(4) 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 the individual or personality consented in a writing signed by the individual or personality or their successor-in-interest, to the use of the individual or personality's name, voice, signature, photograph, or likeness on or in connection with the initial sale, distribution, performance, or display thereof; and

(5) The advertisement or sale of a rare or fine product, including books, which incorporates the signature of the author.

(c) It is no defense to an infringement action under this chapter that the use of an individual or personality's name, voice, signature, photograph, or likeness includes more than one individual or personality so identifiable; provided that the individuals or personalities complaining of the use shall not bring their cause of action as a class action.

(d) Section ‑5 shall not apply to the owners or employees of any medium used for advertising, including newspapers, magazines, radio and television stations, online service providers, billboards, and transit ads, who, without prior notice that the use would be in violation of this chapter, 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.

(e) This chapter shall not apply to a use or authorization for use of an individual 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.

(f) This chapter shall not apply to the use of an individual or personality's name, voice, signature, photograph, or likeness when the use of the individual or personality's name, voice, signature, photograph, or likeness is an insignificant, de minimis, or incidental use.

(g) This chapter shall not apply to the distribution, promotion, transfer, or license of a photograph or other material containing an individual or personality's name, voice, signature, photograph, or likeness to a third party for use in a manner which is lawful under this chapter, or to a third party for further distribution, promotion, transfer, or license for use in a manner which is lawful under this chapter."

SECTION 3. This Act shall take effect on July 1, 2112.

THE SENATE	S.B. NO.	1005
TWENTY-FIFTH LEGISLATURE, 2009		S.D. 2
STATE OF HAWAII		H.D. 1