Senate Bill 2254

AN ACT TO CREATE NEW SECTION 75-95-1, MISSISSIPPI CODE OF 1972, TO ESTABLISH A SHORT TITLE FOR THE MISSISSIPPI RIGHT OF PUBLICITY ACT; TO CREATE NEW SECTION 75-95-3, MISSISSIPPI CODE OF 1972, TO ENACT DEFINITIONS; TO CREATE NEW SECTION 75-95-5, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR APPLICATION OF THE ACT; TO CREATE NEW SECTION 75-95-7, MISSISSIPPI CODE OF 1972, TO ENUMERATE THE RIGHTS OF PUBLICITY; TO CREATE NEW SECTION 75-95-9, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR TRANSFERABILITY OF RIGHTS COVERED UNDER THE ACT; TO CREATE NEW SECTION 75-95-11, MISSISSIPPI CODE OF 1972, TO REQUIRE WRITTEN CONSENT FOR COMMERCIAL USE OF THE RIGHTS ENUMERATED UNDER THE ACT; TO CREATE NEW SECTION 75-95-13, MISSISSIPPI CODE OF 1972, TO STATE THE RELATIONSHIP OF THE ACT TO THE COMMON-LAW RIGHT OF PUBLICITY; AND FOR RELATED PURPOSES.

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

SECTION 1. The following shall be codified as Section 75-95-1, Mississippi Code of 1972:

75-95-1. This chapter shall be known and may be cited as the "Mississippi Right of Publicity Act."

SECTION 2. The following shall be codified as Section 75-95-3, Mississippi Code of 1972:

75-95-3. As used in this chapter:

(a) "Commercial use" means the use of the name, voice, signature, photograph, or likeness of a person on or in any product, merchandise or good or for the purposes of advertising, marketing, selling, or soliciting the purchase of any product, merchandise, good, or service.

(b) "Person" means a natural person.

(d) "Trier of fact" means the jury or, in a nonjury action, the court.

(e) "Written consent" includes written, electronic, digital, or other physically verifiable means of authorization.

SECTION 3. The following shall be codified as Section 75-95-5, Mississippi Code of 1972:

75-95-5. This chapter applies to any commercial use within this state of a living or deceased person's name, voice, signature, photograph, or likeness, regardless of the person's domicile.

SECTION 4. The following shall be codified as Section 75-95-7, Mississippi Code of 1972:

75-95-7. (1) There is a right of publicity in the name, voice, signature, photograph, or likeness of every person. The right endures for a term consisting of the life of the person plus fifty (50) years, regardless of whether the person commercially exploits the right during the person's lifetime.

(2) Any commercial use by another of the name, voice, signature, photograph, or likeness of a person requires the written consent of that person or his or her successor in interest unless:

(a) The use is contained in material that is commercially sponsored but the use is not directly connected with the commercial sponsorship;

(b) The use is an attempt to portray, satirize, imitate, simulate, or impersonate a person in a live performance;

(d) The use is an artistic, expressive, informational, or similar work, including, but not limited to, a play, book, magazine article, newspaper article, musical composition, sound recording, motion picture, radio program, television program, audio work, or audiovisual work, except where the use is directly connected with commercial sponsorship;

(e) The use is made in connection with the resale, distribution, or promotion of literary, musical, or artistic productions or other articles of merchandise or property where such person has consented to the use of the person's name, portrait, photograph, or likeness on or in connection with the initial sale or distribution thereof;

(f) The use is by a professional photographer to exhibit specimens of the professional photographer's work in or about the professional photographer's place of business or portfolio, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition has been given by the person portrayed;

(g) The use consists of a photograph or other image of a person solely as a member of the public, where such person is not named or otherwise identified in or in connection with the use of such image;

(h) The use is in connection with the efforts of a state or local government to portray historical events or commemorate persons or physical sites that are significant in the history of Mississippi; or

(i) The use is incidental or de minimus.

For the purposes of subsection (2)(a) of this section, the use of a person's name, voice, signature, photograph, or likeness in a commercial medium shall not constitute a use for which consent is required solely because the material containing the use is commercially sponsored or contains paid advertising. Rather, it shall be determined by the trier of fact whether 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.

(3) Nothing in this section shall apply to the owners, employees, or agents of any medium used for advertising, including, but not limited to, newspapers, magazines, Internet sites, radio and television networks and stations, cable television systems, billboards, and transit ads, through which any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that such owners, employees, or agents had knowledge or were informed of the unauthorized use of the person's name, voice, signature, photograph, or likeness.

SECTION 5. The following shall be codified as Section 75-95-9, Mississippi Code of 1972:

75-95-9. (1) The right of publicity established by this chapter is freely transferable, in whole or in part, by contract, license, gift, conveyance, assignment, devise, or testamentary trust by a person or his or her successor in interest.

(2) If a deceased person has not transferred his or her rights as provided by subsection (1) of this section, and the person has no surviving beneficiary or successor in interest upon his or her death, the commercial use of the person's name, voice, signature, photograph, or likeness does not require consent.

SECTION 6. The following shall be codified as Section 75-95-11, Mississippi Code of 1972:

75-95-11. (1) Any commercial use of the name, voice, signature, photograph, or likeness of a person by a firm, business, or another person without first having obtained written consent for the use is subject to:

(a) Injunctive relief to prevent or restrain the unauthorized use; and

(b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:

(i) Actual damages, including any profits derived from and attributable to the unauthorized use;

(ii) Treble damages, if the trier of fact finds that the defendant did not make a good-faith effort to secure authorization for the use or if consent was requested but not given; and

(iii) Reasonable attorneys' fees, court costs, and reasonable expenses associated with any civil action brought, in whole or in part, under this chapter.

(2) No action shall be brought under this chapter by reason of any publication, printing, display, or other public use of the name, voice, signature, photograph, or likeness of a person occurring after the expiration of fifty (50) years from and after the death of the person.

SECTION 7. The following shall be codified as Section 75-95-13, Mississippi Code of 1972:

75-95-13. The rights and remedies provided for in this chapter are meant to preempt those available under the common law for claims arising on or after July 1, 2011, but shall not affect a person's common-law rights as they existed for claims arising before that date. Except for the common-law right of publicity, the rights and remedies provided under this chapter are supplemental to any other rights and remedies provided by law including, but not limited to, the common-law right of privacy.

SECTION 8. This act shall take effect and be in force from and after July 1, 2011.