House Bill 1332

AN ACT TO CREATE THE MISSISSIPPI IDENTITY AND HERITAGE PROTECTION ACT OF 2004; TO VEST IN EVERY PERSON, LIVING OR DEAD, THE EXCLUSIVE RIGHT TO CONTROL, EXPLOIT AND LICENSE THE COMMERCIAL USE OF HIS OR HER IDENTITY, INCLUDING NAME, VOICE, SIGNATURE, PHOTOGRAPH AND LIKENESS, IN ANY MANNER, OR PRODUCTS, MERCHANDISE, GOODS OR SERVICES; TO ENACT DEFINITIONS; TO PRESCRIBE THE EXISTENCE OF PROPERTY RIGHTS IN PERSONA; TO CREATE A CIVIL CAUSE OF ACTION; TO PRESCRIBE REMEDIES; TO SPECIFY THE INSTANCES IN WHICH ABANDONMENT OCCURS RESULTING IN A TERMINATION OF RIGHTS; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Definitions. The following words and phrases shall have the meanings ascribed unless the context clearly requires otherwise:

(a) "Individual" means human being, living or dead.

(b) "Identity" means any incident of an individual's persona or combination thereof 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, a crowd in the street or at a public building, the audience at any theatrical or stage production, a glee club or a 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 a use of an individual's identity, including, but not necessarily limited to, use of his or her name, voice, signature, photograph, or likeness for purposes of criticism, comment, news reporting, public affairs, sports broadcasts, teaching, scholarship and research by another person that is not an infringement of the rights conferred in this act.

SECTION 2. Property rights conferred in the identity of living and deceased individuals. (1) Every individual, both living and deceased, shall have a property right in the use of his or her identity, including, but not necessarily limited to, his or her name, voice, signature, photograph, or likeness in any medium and in any manner whatsoever. Fair use is not an infringement of the rights conferred herein.

(2) The individual's rights provided for in subsection (1) of this section are freely assignable in whole or in part, and do not expire upon the death of the individual so protected, without regard to whether such rights were commercially exploited by the individual during his or her lifetime, but shall be descendible to the executors, heirs, assigns or legatees of the deceased individual, subject only to the abandonment and termination provisions hereinafter provided.

SECTION 3. Civil action created. Any person who uses the identity of any living or deceased individual, including, but not necessarily limited to, his or her name, voice, signature, photograph, or likeness in any manner or in any medium as an item of commerce on or for purposes of advertising products, merchandise, goods or services, or for purposes of fund raising, solicitation of donations, purchases of products, merchandise, goods, or services, without the prior consent of the individual, or in the case of a minor, the prior consent of the minor's parent or legal guardian, or in the case of a deceased individual, the consent of the executor or administrator, heirs, legatees or assigns of such deceased individual, shall be liable in a civil action.

SECTION 4. Remedies, attorney's fees and costs. (1) The chancery court shall have original jurisdiction over any action arising under this act. The court, in the exercise of its sound discretion and upon proper proof, may grant all appropriate equitable relief, including, but not limited to, injunctive relief deemed necessary to prevent or restrain the unauthorized use or infringement of the rights granted hereunder.

(2) An individual, or in the case of a deceased individual, his or her executor or administrator, heirs, or legatees shall be entitled to recover the actual damages suffered as a result of the infringement of such individual's rights, together with any profits that are attributable to such use or infringement which are not taken into account in computing actual damages. Profit, or lack thereof, by any unauthorized use or infringement of an individual's rights, shall not be criteria for finding liability.

(3) In addition to all other traditional equitable and legal remedies that are provided in this section, at any time during the pendency of an action under this section, 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 rights, all plates, molds, matrices, masters, tapes, film negatives, digital computer files or other articles by means of which such 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 right, and of all plates, molds, matrices, masters, tapes, film negatives, digital computer files or other articles by means of which such materials may be reproduced.

(5) In any civil action under this act, the court in its discretion may allow the recovery of punitive damages in proper circumstances involving intentional or reckless disregard of the rights conferred by this section. The court in its discretion may also grant to the prevailing party or parties in any action under this section reasonable attorney's fees and costs associated with the action.

(6) All remedies provided for in this section are cumulative and shall be in addition to any others provided by law or equity.

SECTION 5. Abandonment and termination of rights. (1) With regard only to deceased individuals, the rights herein granted shall be deemed to be permanently "abandoned," after the effective date of this statute, when the executors, assigns, heirs, or devisees of the deceased individual shall discontinue good faith efforts to commercially exploit the rights herein granted in the ordinary course of trade with intent not to resume. Failure to commercially exploit these rights for three (3) consecutive years after July 1, 2004, shall be prima facie evidence of abandonment. Upon a finding of abandonment by a court of competent jurisdiction, all rights granted hereunder shall fall into the public domain.

(2) In the event there are no personal representative, heirs, legatees or assigns of a deceased individual, the rights set forth herein shall terminate, and all rights granted hereunder shall fall into the public domain.

SECTION 6. This act shall take effect and be in force from and after July 1, 2004.