BILL NUMBER: AB 2480	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Bass

                        FEBRUARY 19, 2010

   An act to amend Section 3344 of the Civil Code, relating to
privacy.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 2480, as introduced, Bass. Privacy: commercial use of minor's
photograph.
   Under existing law, a person who knowingly uses another'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 that person's prior consent, or, in the case of a
minor, the prior consent of his or her parent or legal guardian,
shall be liable for any damages sustained by the person or persons
injured as a result thereof and for the payment to the injured party
of any profits attributable to that unauthorized use.
   Existing law provides that a person is liable for constructive
invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, or knowingly
trespasses or commits assault with the intent to capture, as
specified, any type of visual image, sound recording, or other
physical impression of the plaintiff engaging in a personal or
familial activity under circumstances in which the plaintiff had a
reasonable expectation of privacy, through the use of a visual or
auditory enhancing device, as specified. Existing law also provides
that a person is liable for constructive invasion of privacy for the
first sale, offer for sale, transmission, publication, broadcast, or
other use of any visual image, sound recording, or other physical
impression, if the person sold, transmitted, published, broadcast, or
used any image or recording of the type described in the provision
above with actual knowledge that the images or recordings were
obtained in violation of that provision and provided compensation,
consideration, or remuneration, monetary or otherwise, for the rights
to the unlawfully obtained visual image, sound recording, or other
physical impression. If the plaintiff proves the invasion of privacy
was committed for a commercial purpose, the defendant is subject to
disgorgement to the plaintiff of any proceeds or other consideration
obtained as a result of the violation of these provisions.
   This bill would provide that any person who knowingly uses any
photograph or likeness of a minor for commercial purposes, as
defined, without consent, shall be liable for any damages sustained
by the person or persons injured as a result thereof and for the
payment to the injured party of any profits attributable to that
unauthorized use.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

  SECTION 1.  Section 3344 of the Civil Code is amended to read:
   3344.  (a)  Any   A  person who
knowingly uses another'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,  or uses
any photograph or likeness of a minor for commercial purposes, as
defined in subdivision (k) of Section 1708.8,  without 
such   that  person's prior consent, or, in the
case of a minor, the prior consent of his  or her  parent or
legal guardian, shall be liable for any damages sustained by the
person or persons injured as a result thereof. In addition, in
 any   an  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 him or
her 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
 such   those  profits, the injured party
or parties are required to present proof only of the gross revenue
attributable to  such   the  use, and the
person who violated this 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 in any action under
this section shall also be entitled to attorney's fees and costs.
   (b) As used in this section, "photograph" means  any
  a  photograph or photographic reproduction, still
or moving, or  any  videotape or live television
transmission, of  any   a  person, such
that the person is readily identifiable.
   (1) A person shall be deemed to be readily identifiable from a
photograph when one who views the photograph with the naked eye can
reasonably determine that the person depicted in the photograph is
the same person who is complaining of its unauthorized use.
   (2) If the photograph includes more than one person so
identifiable, then the person or persons complaining of the use shall
be represented as individuals rather than solely as members of a
definable group represented in the photograph. A definable group
includes, but is not limited to, the following examples: a crowd at
 any   a  sporting event, a crowd in
 any   a  street or public building, the
audience at  any   a  theatrical or stage
production, a glee club, or a baseball team.
   (3) A person or persons shall be considered to be represented as
members of a definable group if they are represented in the
photograph solely as a result of being present at the time the
photograph was taken and have not been singled out as individuals in
any manner.
   (c)  Where   If    a photograph
or likeness of an employee of the person using the photograph or
likeness appearing in the advertisement or other publication prepared
by or in behalf of the user is only incidental, and not essential,
to the purpose of the publication in which it appears, there shall
arise a rebuttable presumption affecting the burden of producing
evidence that the failure to obtain the consent of the employee was
not a knowing use of the employee's photograph or likeness.
   (d) For purposes of this section,  a   the
 use of a name, voice, signature, photograph, or likeness in
connection with any news, public affairs, or sports broadcast or
account, or  any   a  political campaign,
shall not constitute a use for which consent is required under
subdivision (a).
   (e) 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  such   the  use is commercially
sponsored or contains paid advertising. Rather it shall be a
question of fact whether or not the use of the person'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).  This subdivision does not apply to the
use of any photograph or likeness of a minor for commercial purposes,
as defined in subdivision (k) of Section 1708.8, and for which
consent is required pursuant to subdivision (a). 
   (f) Nothing in this section shall apply to the owners or employees
of  any   a  medium used for advertising,
including, but not limited to, newspapers, magazines, radio and
television networks and stations, cable television systems,
billboards, and transit ads, by whom any advertisement or
solicitation in violation of this section is published or
disseminated, unless it is established that  such 
 the  owners or employees had knowledge of the unauthorized
use of the person's name, voice, signature, photograph, or likeness
as prohibited by this section.
   (g) The remedies provided for in this section are cumulative and
shall be in addition to any others provided for  by
law.