PRIOR PRINTER'S NOS. 222, 3239, 4645 PRINTER'S NO. 4677
No. 235 Session of 2001
INTRODUCED BY STAIRS, M. BAKER, BARD, BELARDI, BENNINGHOFF,
BISHOP, CALTAGIRONE, CLARK, CLYMER, L. I. COHEN, CORRIGAN,
FEESE, FICHTER, GEIST, GRUCELA, HARHAI, HENNESSEY, HERMAN,
LAUGHLIN, R. MILLER, S. MILLER, READSHAW, SATHER, SCHULER,
SHANER, SOLOBAY, STABACK, T. STEVENSON, E. Z. TAYLOR, TIGUE,
WALKO, C. WILLIAMS, WILT, WOJNAROSKI, HORSEY, GANNON, WOGAN,
SAINATO, MICHLOVIC, MUNDY AND SAYLOR, JANUARY 25, 2001
AMENDMENTS TO SENATE AMENDMENTS, HOUSE OF REPRESENTATIVES,
NOVEMBER 25, 2002
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for
3 unauthorized publication of name or likeness; and
4 establishing a right of action.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Title 42 of the Pennsylvania Consolidated Statutes
8 is amended by adding a section to read:
9 § 8316. Unauthorized use of name or likeness.
10 (a) Cause of action established.--Any natural person whose <--
11 name or likeness, which has commercial value, is used without
12 the written consent of such natural person for any commercial or
13 advertising purpose, or any of the parties authorized in
14 subsection (b), may bring an action to enjoin such unauthorized
15 use and to recover damages for any loss or injury sustained by
16 such use.
1 (A) CAUSE OF ACTION ESTABLISHED.--ANY NATURAL PERSON WHOSE <--
2 NAME OR LIKENESS HAS COMMERCIAL VALUE AND IS USED FOR ANY
3 COMMERCIAL OR ADVERTISING PURPOSE WITHOUT THE WRITTEN CONSENT OF
4 SUCH NATURAL PERSON OR THE WRITTEN CONSENT OF ANY OF THE PARTIES
5 AUTHORIZED IN SUBSECTION (B) MAY BRING AN ACTION TO ENJOIN SUCH
6 UNAUTHORIZED USE AND TO RECOVER DAMAGES FOR ANY LOSS OR INJURY
7 SUSTAINED BY SUCH USE.
8 (b) Parties authorized to bring action.--Such action may be
9 brought by:
10 (1) The natural person.
11 (2) A parent or guardian of a natural person, if the
12 natural person is a minor.
13 (3) If such natural person is deceased, any person, firm
14 or corporation authorized in writing to license the
15 commercial or advertising use of the natural person's name or
16 likeness by the natural person during the natural person's
17 lifetime or by will or other testamentary device; an executor
18 named in a will or designated by a court of competent
19 jurisdiction; or where there is no such authorization, then
20 by the deceased person's surviving spouse at the time of
21 death until the surviving spouse's death, or in a case where
22 there is no surviving spouse, then any other heir or group of
23 heirs having at least a 50% interest in the deceased person's
24 estate as provided for under law.
25 (4) Any other person, firm or corporation authorized in
26 writing by such natural person to license the commercial or
27 advertising purposes of the person's name or likeness.
28 (c) Repose.--No action shall be commenced under this section
29 more than 30 years after the death of such natural person.
30 (d) Immunity.--No person, firm or corporation, including
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1 their employees and agents, in the business of producing,
2 manufacturing, publishing or disseminating material for
3 commercial or advertising purposes, by any communications
4 medium, shall be held liable under this section unless they had
5 actual knowledge of the unauthorized use of the name or likeness
6 of a natural person as prohibited by this section.
7 (e) Definitions.--As used in this section, the following
8 words and phrases shall have the meanings given to them in this
9 subsection:
10 "Commercial or advertising purpose."
11 (1) Except as provided in paragraph (2), the term shall
12 include the public use or holding out of a natural person's
13 name or likeness:
14 (i) on or in connection with the offering for sale
15 or sale of a product, merchandise, goods, services or
16 businesses;
17 (ii) for the purpose of advertising or promoting
18 products, merchandise, goods or services of a business;
19 or
20 (iii) for the purpose of fundraising.
21 (2) The term shall not include the public use or holding
22 out of a natural person's name or likeness in a
23 communications medium when:
24 (i) the natural person appears as a member of the
25 public and the natural person is not named or otherwise
26 identified;
27 (ii) IT IS associated with a news report or news <--
28 presentation having public interest;
29 (iii) IT is an expressive work; <--
30 (iv) IT is an original work of fine art; <--
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1 (v) IT IS associated with announcement for a <--
2 commercial or advertising purpose for a use permitted by
3 subparagraph (ii), (iii) or (iv); OR <--
4 (vi) IT IS associated with the identification of a <--
5 natural person as the author of or contributor to a
6 written work or the performer of a recorded performance
7 under circumstances in which the written work or the
8 recorded performance is lawfully produced, reproduced,
9 exhibited or broadcast.
10 "Commercial value." Valuable interest in a natural person's
11 name or likeness that is developed through the investment of
12 time, effort and money.
13 "Communication medium." Includes, but is not limited to, a
14 newspaper, magazine, book, newsletter, billboard, telephone,
15 radio, television, recording, computer software, digital
16 communications network, transit ad, audiovisual work or global
17 communications network.
18 "Expressive work." A literary, dramatic, fictional,
19 historical, audiovisual or musical work regardless of the
20 communications medium by which it is exhibited, displayed,
21 performed or transmitted, other than when used or employed for a
22 commercial or advertising purpose.
23 "Name" or "likeness." Any attribute of a natural person that
24 serves to identify that natural person to an ordinary,
25 reasonable viewer or listener, including, but not limited to,
26 name, signature, photograph, image, likeness, voice or a
27 substantially similar imitation of one or more thereof.
28 "NATURAL PERSON." A LIVING PERSON, OR A DECEASED PERSON WHO <--
29 WAS DOMICILED WITHIN THIS COMMONWEALTH AT THE TIME OF SUCH
30 PERSON'S DEATH.
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1 Section 2. This act shall take effect in 60 days.
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