December 13, 2007, Introduced by Reps. Byrnes, LeBlanc, Lindberg, Coulouris, Lemmons, Polidori, Hood, Gaffney, Meisner, Tobocman, Bieda, Gillard, Cushingberry and Clack and referred to the Committee on Judiciary.
A bill to create certain property rights in attributes of an
individual that have commercial value; to recognize transfer of
those rights; to provide exceptions for certain purposes and
entities; and to provide remedies.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the "right
of publicity act".
Sec. 3. As used in this act:
(a) "Attribute" means an individual's name, voice, signature,
image, likeness, or persona and includes distinctive
characteristics of the individual's appearance, gestures, or
mannerisms.
(b) "Commercial purpose" means the use of a personality's
attribute on or in connection with a product, good, service, or
commercial activity for the purpose of fund-raising, advertising,
or soliciting purchases.
(c) "Name" means the actual or assumed name of a living or
deceased natural person that is intended to identify the person.
(d) "News reporting or entertainment medium" means a medium
that publishes, broadcasts, or disseminates advertising in the
normal course of its business, such as a newspaper, magazine, radio
or television network or station, or cable television station.
(e) "Personality" means a living or deceased individual whose
name has commercial value, whether or not the individual uses or
authorizes the use of his or her right of publicity for a
commercial purpose during the individual's lifetime.
(f) "Right of publicity" means the right to control commercial
use of a personality's attributes as provided in this act.
Sec. 5. Except as provided in section 15, a personality has a
transferable property interest in his or her right of publicity for
his or her lifetime plus 50 years as provided in this act.
Sec. 7. A person is liable for a violation of a right of
publicity if the person does any of the following in this state
during the personality's lifetime or within 50 years after the date
of the personality's death without the consent of the personality
or of a person to whom the personality's right of publicity has
been transferred by contract, license, gift, trust, testamentary
document, or operation of law:
(a) Uses an attribute of a personality for a commercial
purpose.
(b) Creates or causes to be created any goods, merchandise, or
other materials that incorporate an attribute of a personality.
(c) Knowingly transports or causes to be transported into or
within this state any goods, merchandise, or other materials that
incorporate an attribute of a personality.
(d) Knowingly causes advertising or promotional material
featuring an attribute of a personality to be published,
distributed, exhibited, or disseminated.
Sec. 9. (1) Subject to subsection (6), a personality or a
person to whom the personality's right of publicity has been
transferred may bring a civil action for a violation of section 7
for damages, equitable relief, or both.
(2) A person who violates section 7 is liable for actual
damages, including profits derived from the unauthorized use, or
$1,000.00, whichever is greater. If the violation is willful,
knowing, or intentional, the violator is liable for treble damages.
(3) The burden of proof in establishing the profits from the
violation of the right of publicity is as follows:
(a) The plaintiff bears the burden of proof as to the gross
revenue attributable to the unauthorized use.
(b) The defendant bears the burden of proof as to any expenses
deductible from the gross profits.
(4) The court shall award the prevailing party in a civil
action under this act reasonable attorney fees, costs, and expenses
relating to an action.
(5) The court shall not grant an injunction against a news
reporting or entertainment medium that has contracted with a person
for the publication or broadcast of an advertisement and that
incorporated the advertisement in tangible form into material that
is prepared for broadcast or publication.
(6) A person who holds a 50% or greater interest in a
personality's right of publicity may exercise and enforce the
rights and remedies provided in this act and shall account to any
other person who holds a fractional interest in the right of
publicity.
Sec. 11. (1) A court may order the impoundment of any goods,
merchandise, or other materials alleged to have been made or used
in violation of section 7 for any period that an action under this
act is pending. Impounded materials may include plates, molds,
matrices, masters, tapes, negatives, or other items from which
those goods, merchandise, or other materials are manufactured or
reproduced.
(2) As part of a final judgment, the court may order the
destruction or other reasonable disposition of items manufactured
or used in violation of section 7.
Sec. 13. It is an affirmative defense to an action under this
act that a person had implied consent for the use or that the use
was one of the following:
(a) Incidental.
(b) Fictional.
(c) Transformative.
(d) Parody.
Sec. 15. (1) This act does not supersede a right or privilege
recognized under any other law that applies to a news reporting or
entertainment medium.
(2) This act does not create a right of publicity in any of
the following:
(a) The use of a personality's attributes in a literary or
theatrical work, musical composition, film, or radio or television
program.
(b) Material that has political or newsworthy value.
(c) An original work of fine art.
(d) Promotional material or advertising for a news reporting
or entertainment medium, if it uses all or part of past material
from the medium's own broadcast or publication and does not convey
or suggest that the personality endorses the news reporting or
entertainment medium.
(e) The use of a personality's name to truthfully identify the
personality in connection with work of the personality.
(f) Use of a personality's attributes in connection with the
broadcast or reporting of an event or topic of general or public
interest.
(g) An advertisement or commercial announcement for a use
described in subdivisions (a) to (f).
Sec. 17. The rights and remedies provided in this act are in
addition to any other rights and remedies provided by law.