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        PRIOR PRINTER'S NO. 1505                      PRINTER'S NO. 1573

THE GENERAL ASSEMBLY OF PENNSYLVANIA


SENATE BILL

No. 1125 Session of 2007


        INTRODUCED BY ORIE, SCARNATI, PILEGGI, PUNT, FONTANA, COSTA,
           RAFFERTY, LOGAN, ROBBINS, MUSTO, ERICKSON, BAKER, GREENLEAF,
           ARMSTRONG, CORMAN, KITCHEN, DINNIMAN, WAUGH, PIPPY, STACK AND
           BROWNE, OCTOBER 25, 2007

        SENATOR GREENLEAF, JUDICIARY, AS AMENDED, NOVEMBER 20, 2007

                                     AN ACT

     1  Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
     2     Judicial Procedure) of the Pennsylvania Consolidated
     3     Statutes, prohibiting the use of name, portrait or picture of
     4     a soldier in certain cases.

     5     The General Assembly of the Commonwealth of Pennsylvania
     6  hereby enacts as follows:
     7     Section 1.  Title 18 of the Pennsylvania Consolidated
     8  Statutes is amended by adding a section to read:
     9  § 6713.  Unauthorized use of name, portrait or picture of
    10             deceased soldier.
    11     (a)  Offense.--A person who knowingly uses the name, portrait
    12  or picture of a deceased soldier for the purpose of advertising
    13  for the sale of any goods, wares or merchandise or for the
    14  solicitation of patronage for any business without having
    15  obtained prior consent to the use by the soldier or by the
    16  soldier's spouse, immediate family member, trustee if the
    17  soldier is a minor or legally designated representative, commits
    18  a misdemeanor of the first degree.

     1     (b)  Exceptions.--Subsection (a) does not apply to the
     2  following:
     3         (1)  The use of a soldier's name, portrait or picture in
     4     an attempt to portray, describe or impersonate that soldier
     5     in a live performance, a single and original work of fine
     6     art, a play, book, article, musical work or film or on radio,
     7     television or other audio or audiovisual work if the
     8     performance, musical work, play, book, article or film does
     9     not itself constitute a commercial advertisement for any
    10     goods, wares or merchandise.
    11         (2)  The use of a soldier's name, portrait or picture for
    12     noncommercial purposes, including any news, public affairs or
    13     sports broadcast or account.
    14         (3)  The use of a soldier's name in truthfully
    15     identifying the soldier as the author of a particular work or
    16     program or as the performer in a particular performance.
    17         (4)  Any promotional materials, advertisements or
    18     commercial announcements for a use described in paragraph
    19     (1), (2) or (3).
    20         (5)  The use of photographs, video recordings and images
    21     by a person, firm or corporation practicing the profession of
    22     photography to exhibit, in or about the professional
    23     photographer's place of business or portfolio, specimens of
    24     the professional photographer's work, unless the exhibition
    25     in IS continued by the professional photographer after         <--
    26     written notice objecting to the exhibition by the portrayed    <--
    27     soldier or a person who may enforce the soldier's rights and
    28     remedies.
    29         (6)  A soldier's picture or portrait that is not facially
    30     identifiable.
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     1         (7)  A photograph of a monument or a memorial that is
     2     placed on any goods, wares or merchandise.
     3     (c)  Definition.--For the purposes of this section, "soldier"
     4  means any active duty member or former member of the Armed
     5  Forces of the United States, including any member who was killed
     6  in the line of duty.
     7     Section 2.  Title 42 is amended by adding a section to read:
     8  § 8316.1.  Unauthorized use of name, portrait or picture of
     9             soldier.
    10     (a)  Right of soldier.--The right to control and to choose
    11  whether and how to use a soldier's name, portrait or picture for
    12  commercial purposes is recognized as each soldier's right of
    13  publicity.
    14     (b)  Liability.--A person is liable for using the name,
    15  portrait or picture of any soldier without having obtained prior
    16  consent to the use by the soldier or by the soldier's spouse,
    17  immediate family member, trustee if the soldier is a minor or
    18  legally designated representative, if the person uses the name,
    19  portrait or picture for any of the following purposes:
    20         (1)  Advertising for the sale of any goods, wares or
    21     merchandise.
    22         (2)  Soliciting patronage for any business.
    23         (3)  Receiving consideration for the sale of any goods,
    24     wares or merchandise.
    25     (c)  Remedies.--A person who uses the name, portrait or
    26  picture of a soldier for a prohibited purpose without prior
    27  consent from the soldier or a person who may enforce the
    28  soldier's rights and remedies is subject to the following:
    29         (1)  Injunctive relief to prevent or restrain the
    30     unauthorized use.
    20070S1125B1573                  - 3 -     

     1         (2)  Compensatory and punitive or exemplary damages.
     2         (3)  Attorney fees and costs.
     3     (d)  Damages.--In calculating damages, any profits from the
     4  unauthorized use that are attributable to that use shall be
     5  taken into account.
     6     (e)  Supplemental rights.--The rights and remedies provided
     7  in this section supplement any other rights and remedies
     8  provided by law, including the right of privacy.
     9     (f)  Limitation of action.--Any claim for relief that is
    10  requested pursuant to this section shall be brought within five
    11  years after the unauthorized publication.
    12     (g)  Rights of action.--The right of publicity is a property
    13  right that survives a soldier's death. On the soldier's death,
    14  only the following individuals may enforce the soldier's rights
    15  and remedies in the following order:
    16         (1)  The soldier's legally designated representative.
    17         (2)  The soldier's spouse.
    18         (3)  The soldier's parents.
    19         (4)  The soldier's children.
    20         (5)  The soldier's grandchildren.
    21     (h)  Exceptions.--This section does not apply to the
    22  following:
    23         (1)  The use of a soldier's name, portrait or picture in
    24     an attempt to portray, describe or impersonate that soldier
    25     in a live performance, a single and original work of fine
    26     art, a play, book, article, musical work or film or on radio,
    27     television or other audio or audiovisual work if the
    28     performance, musical work, play, book, article or film does
    29     not itself constitute a commercial advertisement for any
    30     goods, wares or merchandise.
    20070S1125B1573                  - 4 -     

     1         (2)  The use of a soldier's name, portrait or picture for
     2     noncommercial purposes, including any news, public affairs or
     3     sports broadcast or account.
     4         (3)  The use of a soldier's name in truthfully
     5     identifying the soldier as the author of a particular work or
     6     program or as the performer in a particular performance.
     7         (4)  Any promotional materials, advertisements or
     8     commercial announcements for a use described in paragraph
     9     (1), (2) or (3).
    10         (5)  The use of photographs, video recordings and images
    11     by a person, firm or corporation practicing the profession of
    12     photography to exhibit, in or about the professional
    13     photographer's place of business or portfolio, specimens of
    14     the professional photographer's work, unless the exhibition
    15     in IS continued by the professional photographer after         <--
    16     written notice objecting to the exhibition by the portrayed
    17     soldier or a person who may enforce the soldier's rights and
    18     remedies.
    19         (6)  A soldier's picture or portrait that is not facially
    20     identifiable.
    21         (7)  A photograph of a monument or a memorial that is
    22     placed on any goods, wares or merchandise.
    23     (i)  Definition.--For the purposes of this section, "soldier"
    24  means any active duty member or former member of the Armed
    25  Forces of the United States, including any member who was killed
    26  in the line of duty.
    27     Section 3.  This act shall take effect in 60 days.


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