2005 Regular Session
To: Judiciary A
By: Representative Watson
AN ACT ENTITLED THE MISSISSIPPI IDENTITY AND HERITAGE PROTECTION ACT OF 2005; TO SET FORTH PROVISIONS THAT PROTECT AN INDIVIDUAL'S RIGHT TO CONTROL, EXPLOIT AND LICENSE THE COMMERCIAL USE OF HIS OR HER IDENTITY; TO CREATE A PROPERTY RIGHT IN AN INDIVIDUAL'S IDENTITY; TO DEFINE IDENTITY AS ANY INCIDENT OF AN INDIVIDUAL'S PERSONA, INCLUDING AN INDIVIDUAL'S NAME, VOICE, SIGNATURE, PHOTOGRAPH OR LIKENESS; TO CREATE A CIVIL ACTION AGAINST ANY PERSON WHO USES AN INDIVIDUAL'S IDENTITY WITHOUT THE INDIVIDUAL'S CONSENT; TO MAKE AN EXCEPTION FOR THE FAIR USE OF AN IDENTITY THAT INCLUDES ITS USE IN NEWS, PUBLIC AFFAIRS AND EDUCATION; TO PROVIDE REMEDIES FOR THE UNLAWFUL USE OF AN IDENTITY; TO PROVIDE THAT WHEN THE PROPERTY RIGHT IS ABANDONED OR TERMINATED, IT FALLS INTO THE PUBLIC DOMAIN; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. For purposes of this act, the following words and phrases shall have the meanings ascribed to them in this section:
(a) "Individual" means a human being, whether living or deceased.
(b) "Identity" means one or more incidents of an individual's persona or combination thereof, including his or her name, voice, signature, photograph or likeness, by which the uniqueness of that particular individual could be discerned and distinguished from others, so that the biography, fame, accomplishments, talents, reputation or other tangible and intangible elements of his or her persona could be used for commercial purposes by other persons.
(c) "Person" means any living human being, firm, association, partnership, corporation, limited liability company, limited liability partnership, joint-stock company, syndicate, receiver, common-law trust, conservator, statutory trust, or any other concern by whatever name known or however organized, formed, or created, and includes not-for-profit corporations, associations, educational and religious institutions, political parties, community, civic or other organization.
(d) "Definable group" means an assemblage of individuals existing or brought together with or without interrelation, orderly form, or arrangement, including, but not limited to, a crowd at any sporting event, parade, or festival; crowd in the street or at a public building; the audience at any theatrical or stage production; a glee club; or sports team.
(e) "Photograph" means any photograph or photographic reproduction, still or moving, or any videotape, digital video file or live television transmission of any individual so that the individual is readily identifiable.
(f) "Fair use" means the use of an individual's identity for purposes of criticism, comment, news reporting, public affairs, sports broadcasts, teaching, scholarship and research by another person.
SECTION 2. (1) On the effective date of this act, every individual shall have a property right in his or her identity and its use in any medium and in any manner whatsoever.
(2) The individual's right set forth in subsection (1) of this section is freely assignable in whole or in part. Such right does not expire upon the death of the individual so protected, whether or not the right was commercially exploited by the individual during his or her lifetime, but is descendible to the executors, heirs, assigns or legatees of the deceased individual, subject only to the abandonment and termination provisions of this act.
SECTION 3. Any person who uses the identity of any individual, in any manner which does not constitute a fair use, or in any medium as an item of commerce on or for purposes of advertising products, merchandise, goods or services, for purposes of fund raising, solicitation of donations, or for purposes of the purchase of products, merchandise, goods or services, shall be liable in a civil action, unless the person has obtained (a) the prior consent of the individual, (b) the prior consent of the minor's parent or legal guardian if the individual is a minor, or (c) the prior consent of the executor or administrator, heirs, legatees or assigns of the individual, if the individual is deceased. The fair use of an individual's identity by a person does not infringe on the individual's property right in his identity and does not create liability under this section.
SECTION 4. (1) The chancery court shall have original jurisdiction for any action arising under the provisions of this act. In the exercise of its sound discretion and upon proper proof, the court may grant all appropriate equitable relief, including any injunctive relief deemed necessary to prevent or restrain the unauthorized use or infringement of the property right set forth in this act.
(2) An individual, or in the case of a deceased individual, his or her executor, administrator, heir or legatees, shall be entitled to recover the actual damages suffered as a result of the infringement of the individual's property right in his identity, together with any profits attributable to the use or infringement that are not taken into account in computing actual damages. The profit, or lack therof, attributable to any unauthorized use or infringement of an individual's right shall not be criteria for finding liability.
(3) In addition to all other equitable and legal remedies that are provided in this act or under any other state law, at any time while an action under this act is pending, the court may order the impoundment, on such terms as it may deem reasonable, of all materials or any part thereof claimed to have been made or used in violation of the individual's property right in his identity, and of all plates, molds, matrices, masters, tapes, film negatives, digital computer files or other articles by means of which the materials may be reproduced.
(4) As part of a final judgment or decree, the court may order the destruction or other reasonable disposition of all materials found to have been made or used in violation of the individual's property right in his identity, and of all plates, molds, matrices, masters, tapes, film negatives, digital computer files or other articles by means of which the materials may be reproduced.
(5) In any civil action under this act, the court may allow, in its discretion, the recovery of punitive damages in circumstances involving intentional or reckless disregard of an individual's right conferred under this act. Further, the court, in its discretion, may grant to the prevailing party or parties in any action under this act reasonable attorney's fees and costs associated with the action.
(6) All remedies provided for in the act are cumulative and shall be in addition to any others provided by law or equity.
SECTION 5. (1) With regard only to deceased individuals,
the property right in identity granted under this act shall be deemed to be permanently abandoned when the executors, assigns, heirs, or devisees of the deceased individual discontinue good faith efforts to commercially exploit the individual's right in the ordinary course of trade and with intent not to resume those efforts. Failure to commercially exploit these rights for three (3) consecutive years after the effective date of this act shall be prima facie evidence that the property right has been abandoned. Upon a finding by a court of competent jurisdiction that the property right has been abandoned, the right shall fall into the public domain.
(2) In the event that there is no personal representative, heir, legatee or assign of a deceased individual, the individual and property right in his identity set forth herein shall terminate, and it shall fall into the public domain.
SECTION 6. This act shall take effect and be in force from and after July 1, 2005.