California Assembly Bill AB2480 Introduced / Bill

 BILL NUMBER: AB 2480INTRODUCED 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.