BILL NUMBER: SB 209	ENROLLED

	BILL TEXT



	PASSED THE SENATE   SEPTEMBER 7, 1999

	PASSED THE ASSEMBLY   SEPTEMBER 3, 1999

	AMENDED IN ASSEMBLY   SEPTEMBER 1, 1999

	AMENDED IN ASSEMBLY   JUNE 29, 1999

	AMENDED IN SENATE   MARCH 3, 1999



INTRODUCED BY   Senator Burton and Assembly Member Battin

   (Coauthors:  Senators Hayden, O'Connell, and Solis)

   (Coauthors:  Assembly Members Alquist, Cardoza, Cunneen, House,

Knox, Kuehl, Scott, and Vincent)



                        JANUARY 20, 1999



   An act to amend and renumber Section 990 of the Civil Code,

relating to deceased personalities.





	LEGISLATIVE COUNSEL'S DIGEST





   SB 209, Burton.  Deceased personalities.

   Existing law establishes a cause of action for damages on behalf

of specified injured parties for the unauthorized use of a deceased

personality's name, voice, signature, photograph, or likeness for

commercial purposes within 50 years of the personality's death,

except as specified.

   This bill would revise that provision to extend the period of

protection from 50 years to 70 years after the personality's death.

The bill would also revise the exceptions applicable to this

protection, as specified, and would state that its provisions apply

if any of the acts giving rise to the action occurred directly in

this state.  In addition, the bill would require the Secretary of

State, upon the filing of a claim as successor in interest to the

rights of a deceased personality, as provided pursuant to existing

law, to post the document along with the entire registry of persons

filing such claims on the World Wide Web.

   This bill would provide that these provisions may be known and

cited as the Astaire Celebrity Image Protection Act.





THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:





  SECTION 1.  Section 990 of the Civil Code is amended and renumbered

to read:

   3344.1.  (a) (1) Any person who uses a deceased personality's

name, voice, signature, photograph, or likeness, in any manner, on or

in products, merchandise, or goods, or for purposes of advertising

or selling, or soliciting purchases of, products, merchandise, goods,

or services, without prior consent from the person or persons

specified in subdivision (c), shall be liable for any damages

sustained by the person or persons injured as a result thereof.  In

addition, in any action brought under this section, the person who

violated the section shall be liable to the injured party or parties

in an amount equal to the greater of seven hundred fifty dollars

($750) or the actual damages suffered by the injured party or

parties, as a result of the unauthorized use, and any profits from

the unauthorized use that are attributable to the use and are not

taken into account in computing the actual damages.  In establishing

these profits, the injured party or parties shall be required to

present proof only of the gross revenue attributable to the use and

the person who violated the section is required to prove his or her

deductible expenses.  Punitive damages may also be awarded to the

injured party or parties.  The prevailing party or parties in any

action under this section shall also be entitled to attorneys' fees

and costs.

   (2) For purposes of this subdivision, a play, book, magazine,

newspaper, musical composition, audiovisual work, radio or television

program, single and original work of art, work of political or

newsworthy value, or an advertisement or commercial announcement for

any of these works, shall not be considered a product, article of

merchandise, good, or service if it is fictional or nonfictional

entertainment, or a dramatic, literary, or musical work.

   (3) If a work that is protected under paragraph (2) includes

within it a use in connection with a product, article of merchandise,

good, or service, this use shall not be exempt under this

subdivision, notwithstanding the unprotected use's inclusion in a

work otherwise exempt under this subdivision, if the claimant proves

that this use is so directly connected with a product, article of

merchandise, good, or service as to constitute an act of advertising,

selling, or soliciting purchases of that product, article of

merchandise, good, or service by the deceased personality without

prior consent from the person or persons specified in subdivision

(c).

   (b) The rights recognized under this section are property rights,

freely transferable, in whole or in part, by contract or by means of

trust or testamentary documents, whether the transfer occurs before

the death of the deceased personality, by the deceased personality or

his or her transferees, or, after the death of the deceased

personality, by the person or persons in whom the rights vest under

this section or the transferees of that person or persons.

   (c) The consent required by this section shall be exercisable by

the person or persons to whom the right of consent (or portion

thereof) has been transferred in accordance with subdivision (b), or

if no transfer has occurred, then by the person or persons to whom

the right of consent (or portion thereof) has passed in accordance

with subdivision (d).

   (d) Subject to subdivisions (b) and (c), after the death of any

person, the rights under this section shall belong to the following

person or persons and may be exercised, on behalf of and for the

benefit of all of those persons, by those persons who, in the

aggregate, are entitled to more than a one-half interest in the

rights:

   (1) The entire interest in those rights belong to the surviving

spouse of the deceased personality unless there are any surviving

children or grandchildren of the deceased personality, in which case

one-half of the entire interest in those rights belong to the

surviving spouse.

   (2) The entire interest in those rights belong to the surviving

children of the deceased personality and to the surviving children of

any dead child of the deceased personality unless the deceased

personality has a surviving spouse, in which case the ownership of a

one-half interest in rights is divided among the surviving children

and grandchildren.

   (3) If there is no surviving spouse, and no surviving children or

grandchildren, then the entire interest in those rights belong to the

surviving parent or parents of the deceased personality.

   (4) The rights of the deceased personality's children and

grandchildren are in all cases divided among them and exercisable in

the manner provided in Section 240 of the Probate Code according to

the number of the deceased personality's children represented; the

share of the children of a dead child of a deceased personality can

be exercised only by the action of a majority of them.

   (e) If any deceased personality does not transfer his or her

rights under this section by contract, or by means of a trust or

testamentary document, and there are no surviving persons as

described in subdivision (d), then the rights set forth in

subdivision (a) shall terminate.

   (f) (1) A successor in interest to the rights of a deceased

personality under this section or a licensee thereof may not recover

damages for a use prohibited by this section that occurs before the

successor-in-interest or licensee registers a claim of the rights

under paragraph (2).

   (2) Any person claiming to be a successor-in-interest to the

rights of a deceased personality under this section or a licensee

thereof may register that claim with the Secretary of State on a form

prescribed by the Secretary of State and upon payment of a fee of

ten dollars ($10).  The form shall be verified and shall include the

name and date of death of the deceased personality, the name and

address of the claimant, the basis of the claim, and the rights

claimed.

   (3) Upon receipt and after filing of any document under this

section, the Secretary of State shall post the document along with

the entire registry of persons claiming to be a successor in interest

to the rights of a deceased personality or a registered licensee

under this section upon the World Wide Web, also known as the

Internet.  The Secretary of State may microfilm or reproduce by other

techniques any of the filings or documents and destroy the original

filing or document.  The microfilm or other reproduction of any

document under the provisions of this section shall be admissible in

any court of law.  The microfilm or other reproduction of any

document may be destroyed by the Secretary of State 70 years after

the death of the personality named therein.

   (4) Claims registered under this subdivision shall be public

records.

   (g) No action shall be brought under this section by reason of any

use of a deceased personality's name, voice, signature, photograph,

or likeness occurring after the expiration of 70 years after the

death of the deceased personality.

   (h) As used in this section, "deceased personality" means any

natural person whose name, voice, signature, photograph, or likeness

has commercial value at the time of his or her death, whether or not

during the lifetime of that natural person the person 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" shall include, without

limitation, any such natural person who has died within 70 years

prior to January 1, 1985.

   (i) As used in this section, "photograph" means any photograph or

photographic reproduction, still or moving, or any video tape or live

television transmission, of any person, such that the deceased

personality is readily identifiable.  A deceased personality shall be

deemed to be readily identifiable from a photograph when one who

views the photograph with the naked eye can reasonably determine who

the person depicted in the photograph is.

   (j) For purposes of this section, a use of a name, voice,

signature, photograph, or likeness in connection with any news,

public affairs, or sports broadcast or account, or any political

campaign, shall not constitute a use for which consent is required

under subdivision (a).

   (k) The use of a name, voice, signature, photograph, or likeness

in a commercial medium shall not constitute a use for which consent

is required under subdivision (a) solely because the material

containing the use is commercially sponsored or contains paid

advertising.  Rather, it shall be a question of fact whether or not

the use of the deceased personality's name, voice, signature,

photograph, or likeness was so directly connected with the commercial

sponsorship or with the paid advertising as to constitute a use for

which consent is required under subdivision (a).

   (l) Nothing in this section shall apply to the owners or employees

of any medium used for advertising, including, but not limited to,

newspapers, magazines, radio and television networks and stations,

cable television systems, billboards, and transit ads, by whom any

advertisement or solicitation in violation of this section is

published or disseminated, unless it is established that the owners

or employees had knowledge of the unauthorized use of the deceased

personality's name, voice, signature, photograph, or likeness as

prohibited by this section.

   (m) The remedies provided for in this section are cumulative and

shall be in addition to any others provided for by law.

   (n) This section shall apply to the adjudication of liability and

the imposition of any damages or other remedies in cases in which the

liability, damages, and other remedies arise from acts occurring

directly in this state.  For purposes of this section, acts giving

rise to liability shall be limited to the use, on or in products,

merchandise, goods, or services, or the advertising or selling, or

soliciting purchases of, products, merchandise, goods, or services

prohibited by this section.

   (o) This section shall be known, and may be cited, as the Astaire

Celebrity Image Protection Act.