SENATE AMENDED
PRIOR PRINTER'S NOS. 222, 3239 PRINTER'S NO. 4645
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
AS AMENDED ON THIRD CONSIDERATION, IN SENATE, NOVEMBER 19, 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 § 8313 8315. Unauthorized publication of name or likeness. <--
10 (a) General rule.--No person shall publish, print, produce,
11 manufacture, display or otherwise publicly use for any
12 commercial or advertising purpose the name, portrait, voice,
13 photograph or other likeness of any natural person without the
14 express written consent to such use given by:
15 (1) such natural person;
16 (2) any other person, firm or corporation authorized in
1 writing by such natural person to license the commercial use
2 of such natural person's name or likeness; or
3 (3) if such natural person is deceased, any person, firm
4 or corporation authorized in writing to license the
5 commercial use of the decedent's name, portrait, voice,
6 photograph or likeness, or if no person, firm or corporation
7 is so authorized, then by any one from among a class composed
8 of the decedent's surviving spouse and surviving children.
9 (b) Right of action.--In the event the consent required in
10 subsection (a) is not obtained, the natural person whose name,
11 portrait, voice, photograph or other likeness is so used, or any
12 person, firm or corporation authorized by such natural person in
13 writing to license the commercial use of such natural person's
14 name or likeness, or, if the natural person whose likeness is
15 used is deceased, any person, firm or corporation having the
16 right to give such consent, as provided in subsection (a)(3),
17 may bring an action to enjoin such unauthorized publication,
18 printing, production, manufacture, display or other public use
19 and to recover damages for any loss or injury sustained by
20 reason thereof, including an amount which would have been a
21 reasonable royalty and punitive or exemplary damages.
22 (c) Applicability.--The provisions of this section shall not
23 apply to any of the following:
24 (1) the publication, printing, display or use of the
25 name, portrait, voice, photograph or likeness of any natural
26 person in any newspaper, magazine, book, news broadcast or <--
27 telecast, or other news medium or publication COMMUNICATIONS <--
28 MEDIUM as part of any news report or news presentation having
29 public interest and where such name or likeness is not used <--
30 for advertising purposes;
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1 (2) a photograph, video or audio recording of a natural
2 person solely as a member of the public and where such person
3 is not named or otherwise identified in or in connection with
4 the use of such photograph;
5 (3) an expressive work regardless of the media MEDIUM in <--
6 which the work appears or is transmitted, other than when
7 used or employed for a commercial or advertising purpose;
8 (4) material that has political or newsworthy value;
9 (5) an original work of fine art;
10 (6) an announcement for a commercial or advertising
11 purpose for a use permitted by paragraphs (1), (3), (4) or <--
12 (5); or
13 (7) the use of an individual's name to truthfully
14 identify the individual as the author of or contributor to a
15 written work or the performer of a recorded performance under
16 circumstances in which the written work or the recorded
17 performance is lawfully produced, reproduced, exhibited or
18 broadcast.
19 (8) The use of the name, portrait, voice, photograph or
20 other likeness of a deceased natural person pursuant to
21 subsection (a)(3), unless such deceased natural person was
22 domiciled within this Commonwealth at the time of that
23 person's death.
24 (d) Time limitations.--No action shall be brought under this
25 section by reason of any publication, printing, display or other
26 public use of the name or likeness of a natural person occurring
27 after the expiration of 40 years from and after the death of
28 such natural person.
29 (e) Consent by minor.--A consent provided for in subsection
30 (a) may only be given on behalf of a minor by the guardian of
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1 the minor's person or by either parent.
2 (f) Other remedies.--The remedies provided for in this
3 section shall be in addition to and not in limitation of the
4 remedies and rights of any natural person under the common law
5 against the invasion of such person's privacy.
6 (g) Liability of owners and employees OR PERSONS ACTING ON <--
7 THEIR BEHALF AND FOR WHOM THEY BEAR LEGAL RESPONSIBILITY.--The
8 owners or employees, OR PERSONS ACTING ON THEIR BEHALF AND FOR <--
9 WHOM THEY BEAR LEGAL RESPONSIBILITY, of a producer or
10 manufacturer of advertising or commercials or of any
11 COMMUNICATIONS medium used for advertising or commercial <--
12 purposes, including, but not limited to, a newspaper, magazine, <--
13 radio or television network or station, cable television system,
14 billboard, transit ad and global communications network, by whom
15 any advertisement or solicitation in violation of this section
16 is published or disseminated, shall not be liable under this <--
17 section unless it is established that those owners or employees
18 had, OR PERSONS ACTING ON THEIR BEHALF AND FOR WHOM THEY BEAR <--
19 LEGAL RESPONSIBILITY, HAD ACTUAL knowledge of the unauthorized
20 use of the name, portrait, voice, photograph or other likeness
21 of a natural person as prohibited by this section.
22 (h) Definitions.--As used in this section, the following
23 words and phrases shall have the meanings given to them in this
24 subsection:
25 "Children." A natural person's immediate offspring and any
26 children legally adopted by the person.
27 "Commercial or advertising purpose." A communication
28 designed to induce a person to use, purchase or employ a
29 particular product or service.
30 "COMMUNICATIONS MEDIUM." INCLUDES, BUT IS NOT LIMITED TO, A <--
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1 NEWSPAPER, MAGAZINE, BOOK, NEWSLETTER, BILLBOARD, TELEPHONE,
2 RADIO, TELEVISION, RECORDING, COMPUTER SOFTWARE, DIGITAL
3 COMMUNICATIONS NETWORK, TRANSIT AD, MOTION PICTURE OR GLOBAL
4 COMMUNICATIONS NETWORK.
5 "Expressive work." A literary work, dramatic work, fictional
6 work, historical work, audiovisual work or musical work
7 regardless of the media in which it appears or is transmitted.
8 "Surviving spouse." The decedent's surviving spouse under
9 the law of the decedent's domicile at the time of the decedent's
10 death, whether or not the spouse has later remarried.
11 § 8316. UNAUTHORIZED USE OF NAME OR LIKENESS. <--
12 (A) CAUSE OF ACTION ESTABLISHED.--ANY NATURAL PERSON WHOSE
13 NAME OR LIKENESS, WHICH HAS COMMERCIAL VALUE, IS USED WITHOUT
14 THE WRITTEN CONSENT OF SUCH NATURAL PERSON FOR ANY COMMERCIAL OR
15 ADVERTISING PURPOSE, OR ANY OF THE PARTIES AUTHORIZED IN
16 SUBSECTION (B), MAY BRING AN ACTION TO ENJOIN SUCH UNAUTHORIZED
17 USE AND TO RECOVER DAMAGES FOR ANY LOSS OR INJURY SUSTAINED BY
18 SUCH USE.
19 (B) PARTIES AUTHORIZED TO BRING ACTION.--SUCH ACTION MAY BE
20 BROUGHT BY:
21 (1) THE NATURAL PERSON.
22 (2) A PARENT OR GUARDIAN OF A NATURAL PERSON, IF THE
23 NATURAL PERSON IS A MINOR.
24 (3) IF SUCH NATURAL PERSON IS DECEASED, ANY PERSON, FIRM
25 OR CORPORATION AUTHORIZED IN WRITING TO LICENSE THE
26 COMMERCIAL OR ADVERTISING USE OF THE NATURAL PERSON'S NAME OR
27 LIKENESS BY THE NATURAL PERSON DURING THE NATURAL PERSON'S
28 LIFETIME OR BY WILL OR OTHER TESTAMENTARY DEVICE; AN EXECUTOR
29 NAMED IN A WILL OR DESIGNATED BY A COURT OF COMPETENT
30 JURISDICTION; OR WHERE THERE IS NO SUCH AUTHORIZATION, THEN
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1 BY THE DECEASED PERSON'S SURVIVING SPOUSE AT THE TIME OF
2 DEATH UNTIL THE SURVIVING SPOUSE'S DEATH, OR IN A CASE WHERE
3 THERE IS NO SURVIVING SPOUSE, THEN ANY OTHER HEIR OR GROUP OF
4 HEIRS HAVING AT LEAST A 50% INTEREST IN THE DECEASED PERSON'S
5 ESTATE AS PROVIDED FOR UNDER LAW.
6 (4) ANY OTHER PERSON, FIRM OR CORPORATION AUTHORIZED IN
7 WRITING BY SUCH NATURAL PERSON TO LICENSE THE COMMERCIAL OR
8 ADVERTISING PURPOSES OF THE PERSON'S NAME OR LIKENESS.
9 (C) REPOSE.--NO ACTION SHALL BE COMMENCED UNDER THIS SECTION
10 MORE THAN 30 YEARS AFTER THE DEATH OF SUCH NATURAL PERSON.
11 (D) IMMUNITY.--NO PERSON, FIRM OR CORPORATION, INCLUDING
12 THEIR EMPLOYEES AND AGENTS, IN THE BUSINESS OF PRODUCING,
13 MANUFACTURING, PUBLISHING OR DISSEMINATING MATERIAL FOR
14 COMMERCIAL OR ADVERTISING PURPOSES, BY ANY COMMUNICATIONS
15 MEDIUM, SHALL BE HELD LIABLE UNDER THIS SECTION UNLESS THEY HAD
16 ACTUAL KNOWLEDGE OF THE UNAUTHORIZED USE OF THE NAME OR LIKENESS
17 OF A NATURAL PERSON AS PROHIBITED BY THIS SECTION.
18 (E) DEFINITIONS.--AS USED IN THIS SECTION, THE FOLLOWING
19 WORDS AND PHRASES SHALL HAVE THE MEANINGS GIVEN TO THEM IN THIS
20 SUBSECTION:
21 "COMMERCIAL OR ADVERTISING PURPOSE."
22 (1) EXCEPT AS PROVIDED IN PARAGRAPH (2), THE TERM SHALL
23 INCLUDE THE PUBLIC USE OR HOLDING OUT OF A NATURAL PERSON'S
24 NAME OR LIKENESS:
25 (I) ON OR IN CONNECTION WITH THE OFFERING FOR SALE
26 OR SALE OF A PRODUCT, MERCHANDISE, GOODS, SERVICES OR
27 BUSINESSES;
28 (II) FOR THE PURPOSE OF ADVERTISING OR PROMOTING
29 PRODUCTS, MERCHANDISE, GOODS OR SERVICES OF A BUSINESS;
30 OR
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1 (III) FOR THE PURPOSE OF FUNDRAISING.
2 (2) THE TERM SHALL NOT INCLUDE THE PUBLIC USE OR HOLDING
3 OUT OF A NATURAL PERSON'S NAME OR LIKENESS IN A
4 COMMUNICATIONS MEDIUM WHEN:
5 (I) THE NATURAL PERSON APPEARS AS A MEMBER OF THE
6 PUBLIC AND THE NATURAL PERSON IS NOT NAMED OR OTHERWISE
7 IDENTIFIED;
8 (II) ASSOCIATED WITH A NEWS REPORT OR NEWS
9 PRESENTATION HAVING PUBLIC INTEREST;
10 (III) IS AN EXPRESSIVE WORK;
11 (IV) IS AN ORIGINAL WORK OF FINE ART;
12 (V) ASSOCIATED WITH ANNOUNCEMENT FOR A COMMERCIAL OR
13 ADVERTISING PURPOSE FOR A USE PERMITTED BY SUBPARAGRAPH
14 (II), (III) OR (IV);
15 (VI) ASSOCIATED WITH THE IDENTIFICATION OF A NATURAL
16 PERSON AS THE AUTHOR OF OR CONTRIBUTOR TO A WRITTEN WORK
17 OR THE PERFORMER OF A RECORDED PERFORMANCE UNDER
18 CIRCUMSTANCES IN WHICH THE WRITTEN WORK OR THE RECORDED
19 PERFORMANCE IS LAWFULLY PRODUCED, REPRODUCED, EXHIBITED
20 OR BROADCAST.
21 "COMMERCIAL VALUE." VALUABLE INTEREST IN A NATURAL PERSON'S
22 NAME OR LIKENESS THAT IS DEVELOPED THROUGH THE INVESTMENT OF
23 TIME, EFFORT AND MONEY.
24 "COMMUNICATION MEDIUM." INCLUDES, BUT IS NOT LIMITED TO, A
25 NEWSPAPER, MAGAZINE, BOOK, NEWSLETTER, BILLBOARD, TELEPHONE,
26 RADIO, TELEVISION, RECORDING, COMPUTER SOFTWARE, DIGITAL
27 COMMUNICATIONS NETWORK, TRANSIT AD, AUDIOVISUAL WORK OR GLOBAL
28 COMMUNICATIONS NETWORK.
29 "EXPRESSIVE WORK." A LITERARY, DRAMATIC, FICTIONAL,
30 HISTORICAL, AUDIOVISUAL OR MUSICAL WORK REGARDLESS OF THE
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1 COMMUNICATIONS MEDIUM BY WHICH IT IS EXHIBITED, DISPLAYED,
2 PERFORMED OR TRANSMITTED, OTHER THAN WHEN USED OR EMPLOYED FOR A
3 COMMERCIAL OR ADVERTISING PURPOSE.
4 "NAME" OR "LIKENESS." ANY ATTRIBUTE OF A NATURAL PERSON THAT
5 SERVES TO IDENTIFY THAT NATURAL PERSON TO AN ORDINARY,
6 REASONABLE VIEWER OR LISTENER, INCLUDING, BUT NOT LIMITED TO,
7 NAME, SIGNATURE, PHOTOGRAPH, IMAGE, LIKENESS, VOICE OR A
8 SUBSTANTIALLY SIMILAR IMITATION OF ONE OR MORE THEREOF.
9 Section 2. This act shall take effect in 60 days.
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