BILL NUMBER: AB 585	CHAPTERED
	BILL TEXT

	CHAPTER  20
	FILED WITH SECRETARY OF STATE  MAY 17, 2010
	APPROVED BY GOVERNOR  MAY 17, 2010
	PASSED THE SENATE  APRIL 29, 2010
	PASSED THE ASSEMBLY  MAY 3, 2010
	AMENDED IN SENATE  APRIL 21, 2010
	AMENDED IN SENATE  SEPTEMBER 3, 2009

INTRODUCED BY   Assembly Member Cook
   (Coauthors: Assembly Members Anderson and DeVore)

                        FEBRUARY 25, 2009

   An act to amend Section 3344.1 of the Civil Code, relating to
deceased personalities.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 585, Cook. 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 70 years of the personality's death,
except as specified. Existing law defines "deceased personality" for
purposes of these provisions as 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.
   This bill would expand that definition of "deceased personality"
for purposes of these provisions to include any natural person whose
name, voice, signature, photograph, or likeness has commercial value
either at the time of his or her death, or because of his or her
death.
   The bill would provide that its provisions are severable.


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

  SECTION 1.  Section 3344.1 of the Civil Code is amended 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 attorney's 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 or descendible, in whole or in part, by contract
or by means of any trust or any other testamentary instrument,
executed before or after January 1, 1985. The rights recognized under
this section shall be deemed to have existed at the time of death of
any deceased personality who died prior to January 1, 1985, and,
except as provided in subdivision (o), shall vest in the persons
entitled to these property rights under the testamentary instrument
of the deceased personality effective as of the date of his or her
death. In the absence of an express transfer in a testamentary
instrument of the deceased personality's rights in his or her name,
voice, signature, photograph, or likeness, a provision in the
testamentary instrument that provides for the disposition of the
residue of the deceased personality's assets shall be effective to
transfer the rights recognized under this section in accordance with
the terms of that provision. The rights established by this section
shall also be freely transferable or descendible by contract, trust,
or any other testamentary instrument by any subsequent owner of the
deceased personality's rights as recognized by this section. Nothing
in this section shall be construed to render invalid or unenforceable
any contract entered into by a deceased personality during his or
her lifetime by which the deceased personality assigned the rights,
in whole or in part, to use his or her name, voice, signature,
photograph, or likeness, regardless of whether the contract was
entered into before or after January 1, 1985.
   (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 instrument, 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 as
set forth in subdivision (d) of Section 12195 of the Government Code.
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 Secretary of State's Internet Web site.
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) An action shall not 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, or because 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 videotape 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 if 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, the 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 advertisements, 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) Notwithstanding any provision of this section to the contrary,
if an action was taken prior to May 1, 2007, to exercise rights
recognized under this section relating to a deceased personality who
died prior to January 1, 1985, by a person described in subdivision
(d), other than a person who was disinherited by the deceased
personality in a testamentary instrument, and the exercise of those
rights was not challenged successfully in a court action by a person
described in subdivision (b), that exercise shall not be affected by
subdivision (b). In that case, the rights that would otherwise vest
in one or more persons described in subdivision (b) shall vest solely
in the person or persons described in subdivision (d), other than a
person disinherited by the deceased personality in a testamentary
instrument, for all future purposes.
   (p) The rights recognized by this section are expressly made
retroactive, including to those deceased personalities who died
before January 1, 1985.
  SEC. 2.  The provisions of this act are severable. If any provision
of this act or its application is held invalid, that invalidity
shall not affect other provisions or applications that can be given
effect without the invalid provision or application.