SENATE BILL No. 983

SENATE BILL No. 983
December 11, 2007, Introduced by Senators CLARKE, PATTERSON, RICHARDVILLE, ALLEN,KAHN, PRUSI, PAPPAGEORGE and SCHAUER and referred to the Committee on Commerce andTourism.

A bill to create certain property rights in attributes of anindividual that have commercial value; to recognize transfer ofthose rights; to provide exceptions for certain purposes andentities; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
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SENATE BILL No. 983

2Sec. 1. This act shall be known and may be cited as the "rightof publicity act".

3Sec. 3. As used in this act:4(a) "Attribute" means an individual's name, voice, signature,5

image, likeness, or persona and includes distinctive

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characteristics of the individual's appearance, gestures, or7mannerisms.

8(b) "Commercial purpose" means the use of a personality's

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attribute on or in connection with a product, good, service, or02945'07

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commercial activity for the purpose of fund-raising, advertising,2

or soliciting purchases.

3(c) "Name" means the actual or assumed name of a living or4

deceased natural person that is intended to identify the person.

5(d) "News reporting or entertainment medium" means a medium

6that publishes, broadcasts, or disseminates advertising in the7normal course of its business, such as a newspaper, magazine, radio8or television network or station, or cable television station.

9(e) "Personality" means a living or deceased individual whose10name has commercial value, whether or not the individual uses or11authorizes the use of his or her right of publicity for a12commercial purpose during the individual's lifetime.

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14(f) "Right of publicity" means the right to control commercial
use of a personality's attributes as provided in this act.

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Sec. 5. Except as provided in section 15, a personality has a

16transferable property interest in his or her right of publicity for17

his or her lifetime plus 50 years as provided in this act.

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Sec. 7. A person is liable for a violation of a right of19

publicity if the person does any of the following in this state

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during the personality's lifetime or within 50 years after the date21of the personality's death without the consent of the personality

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or of a person to whom the personality's right of publicity has

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been transferred by contract, license, gift, trust, testamentary

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document, or operation of law:

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(a) Uses an attribute of a personality for a commercialpurpose.
(b) Creates or causes to be created any goods, merchandise, or02945'07

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other materials that incorporate an attribute of a personality.

2(c) Knowingly transports or causes to be transported into or3

within this state any goods, merchandise, or other materials that

4incorporate an attribute of a personality.

5(d) Knowingly causes advertising or promotional material

6featuring an attribute of a personality to be published,

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distributed, exhibited, or disseminated.

8Sec. 9. (1) Subject to subsection (6), a personality or a9person to whom the personality's right of publicity has been

10transferred may bring a civil action for a violation of section 7

11for damages, equitable relief, or both.

12(2) A person who violates section 7 is liable for actual

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damages, including profits derived from the unauthorized use, or14$1,000.00, whichever is greater. If the violation is willful,

15knowing, or intentional, the violator is liable for treble damages.

161718192021(3) The burden of proof in establishing the profits from theviolation of the right of publicity is as follows:(a) The plaintiff bears the burden of proof as to the grossrevenue attributable to the unauthorized use.
(b) The defendant bears the burden of proof as to any expenses
deductible from the gross profits.

22(4) The court shall award the prevailing party in a civil

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action under this act reasonable attorney fees, costs, and expenses

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relating to an action.

25(5) The court shall not grant an injunction against a news

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reporting or entertainment medium that has contracted with a person

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incorporated the advertisement in tangible form into material that2

is prepared for broadcast or publication.

3(6) A person who holds a 50% or greater interest in a4

personality's right of publicity may exercise and enforce the5rights and remedies provided in this act and shall account to any

6other person who holds a fractional interest in the right of

7publicity.

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Sec. 11. (1) A court may order the impoundment of any goods,

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merchandise, or other materials alleged to have been made or used10

in violation of section 7 for any period that an action under this11act is pending. Impounded materials may include plates, molds,

12matrices, masters, tapes, negatives, or other items from which

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those goods, merchandise, or other materials are manufactured or

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reproduced.

15(2) As part of a final judgment, the court may order the16

destruction or other reasonable disposition of items manufactured

17or used in violation of section 7.

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Sec. 13. It is an affirmative defense to an action under this19

act that a person had implied consent for the use or that the use

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was one of the following:21(a) Incidental.

22(b) Fictional.

23(c) Transformative.

24(d) Parody.

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Sec. 15. (1) This act does not supersede a right or privilege

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recognized under any other law that applies to a news reporting or27entertainment medium.

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3(2) This act does not create a right of publicity in any ofthe following:(a) The use of a personality's attributes in a literary or

4theatrical work, musical composition, film, or radio or television

5program.

6(b) Material that has political or newsworthy value.

7(c) An original work of fine art.

8(d) Promotional material or advertising for a news reporting

9or entertainment medium, if it uses all or part of past material

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from the medium's own broadcast or publication and does not convey11or suggest that the personality endorses the news reporting or

12entertainment medium.

131415(e) The use of a personality's name to truthfully identify thepersonality in connection with work of the personality.
(f) Use of a personality's attributes in connection with the16broadcast or reporting of an event or topic of general or public

17interest.

18192021(g) An advertisement or commercial announcement for a use
described in subdivisions (a) to (f).
Sec. 17. The rights and remedies provided in this act are inaddition to any other rights and remedies provided by law.

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