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AN ACT relating to commercial rights to the use of names, voices, and likenesses. 1
Be it enacted by the General Assembly of the Commonwealth of Kentucky: 2
SECTION 1. A NEW SECTION OF KRS CHAPTER 365 IS CREATED TO 3
READ AS FOLLOWS: 4
(1) As used in this section: 5
(a) "Digital depiction" means a replica, imitation, or approximation of the 6
likeness of an individual that is created or altered in whole or in part using 7
digital technology; 8
(b) "Digital technology" means a technology or device now known or hereafter 9
created, including but not limited to computer software, artificial 10
intelligence, machine learning, quantum computing, or other similar 11
technologies or devices; 12
(c) "Digital voice replica" means an audio rendering that is created or altered 13
in whole or in part using digital technology and is fixed in a sound 14
recording or audiovisual work which includes replications, imitations, or 15
approximations of an individual that the individual did not actually 16
perform; 17
(d) "Individual" means a natural person, living or dead, and includes the estate 18
of an incompetent or deceased individual; 19
(e) "Likeness" means an actual or simulated physical, digital, or other 20
depiction or representation of an individual, regardless of the means of 21
creation, that is readily identifiable as the individual by virtue of the 22
individual's face, outward appearance, or other distinguishing 23
characteristic, or other information displayed in connection with the readily 24
identifiable characteristics of the individual; 25
(f) "Person" means any individual, firm, association, partnership, corporation, 26
joint stock company, syndicate, receiver, common law trust, conservator, 27 UNOFFICIAL COPY 24 RS BR 1661
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statutory trust, or any legal or commercial entity organized, formed, or 1
created, whether foreign or domestic. "Person" includes nonprofit 2
corporations, associations, educational and religious institutions, political 3
parties, community, civic, legal, or commercial entities; 4
(g) "Personalized cloning service" means an algorithm, software, tool, or other 5
technology, service, or device the primary purpose or function of which is to 6
produce one (1) or more digital voice replicas or digital depictions of 7
particular, identified individuals; and 8
(h) "Voice" means sounds in any medium containing the actual voice or a 9
simulation of the voice of an individual, whether recorded or generated by 10
computer, artificial intelligence, algorithm, or other digital technology, 11
service, or device, to the extent that the individual depicted or simulated is 12
readily identifiable from the sound of the voice depicted or simulated, or 13
from other information displayed in connection with the voice or simulation 14
of the voice. 15
(2) (a) Every individual shall have property rights in his or her name, voice, and 16
likeness. Whether or not an individual commercially benefited from his or 17
her rights during the individual's lifetime, his or her rights shall: 18
1. Be freely transferrable and descendible, in whole or in part; 19
2. Not expire upon the death of the individual; 20
3. Be exclusive to the individual during his or her lifetime, subject to the 21
transfer of rights as provided in subparagraph 1. of this paragraph; 22
and 23
4. Be exclusive to the executors, heirs, transferees, or devisees after the 24
death of the individual and shall not terminate as long as the name, 25
voice, or likeness of the individual is used for commercial purposes by 26
an executor, heir, transferee, or devisee, or for ten (10) years after the 27 UNOFFICIAL COPY 24 RS BR 1661
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death of the individual, whichever is longer. 1
(b) The property rights described in paragraph (a) of this subsection may be 2
terminated by: 3
1. Proof of the nonuse of the name, voice, or likeness of an individual for 4
commercial purposes by an executor, transferee, heir, or devisee for a 5
period of two (2) consecutive years subsequent to the initial ten (10) 6
year period following the individual's death; or 7
2. The death of all executors, transferees, heirs, or devisees of the 8
individual exercising his or her property rights. 9
(3) An agreement authorizing the use of digital depiction or digital voice replica for a 10
new performance of the individual in an advertisement or expressive work shall 11
be valid if, at the time the agreement was executed: 12
(a) 1. The individual exercising his or her property rights was eighteen (18) 13
years of age or older, or, if under eighteen (18) years of age, the 14
agreement is approved by a parent, guardian, or court in accordance 15
with applicable state law; 16
2. The individual exercising his or her property rights was represented by 17
counsel; and 18
3. The agreement was in writing; or 19
(b) The terms of the agreement are governed by a collective bargaining 20
agreement. 21
(4) A person shall be liable for damages as set forth in subsections (5) or (6) of this 22
section if the person, without consent of the individual exercising his or her 23
property rights or the holder of the property rights: 24
(a) Distributes, transmits, or otherwise makes available to the public a 25
personalized cloning service; 26
(b) Publishes, performs, distributes, transmits, or makes available to the public 27 UNOFFICIAL COPY 24 RS BR 1661
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a digital voice replica or digital depiction with knowledge that the digital 1
voice replica or digital depiction was not authorized by the individual or the 2
holder of the property rights; or 3
(c) Materially contributes to, directs, or facilitates any of the conduct set forth 4
in paragraphs (a) or (b) of this subsection with knowledge that the 5
individual or the holder of the property rights has not consented to the 6
conduct. 7
(5) A person who violates subsection (4)(a) of this section shall be liable to the 8
injured person for fifty thousand dollars ($50,000) per violation per person or the 9
actual damages suffered by the person, whichever is greater, plus any profits 10
from the unauthorized use of the individual's name, voice, or likeness. 11
(6) A person who violates subsection (4)(b) or (c) of this section shall be liable to the 12
injured person for five thousand dollars ($5,000) per violation per person or the 13
actual damages suffered by the person, whichever is greater, plus any profits 14
from the unauthorized use of the individual's name, voice, or likeness. 15
(7) (a) In establishing profits under subsection (5) or (6) of this section, the injured 16
party or parties shall be required only to present proof of the gross revenue 17
being either directly or indirectly attributable to the unauthorized use. 18
(b) The person who violated this section shall be required to prove his or her 19
expenses deductible therefrom. 20
(c) Punitive damages and reasonable attorneys’ fees may also be awarded to 21
the injured party or parties. 22
(8) It shall not be a defense to an allegation of a violation of subsection (4) of this 23
section that the unauthorized user displayed or otherwise communicated to the 24
public a disclaimer stating that use was unauthorized or that the individual or 25
owner of the individual's rights did not participate in the creation, development, 26
distribution, or dissemination of the unauthorized digital depiction, digital voice 27 UNOFFICIAL COPY 24 RS BR 1661
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replica, or personalized cloning services. 1
(9) An action to enforce this section may be brought by: 2
(a) The individual whose name, voice, or likeness is at issue; 3
(b) Any other person to which the individual has assigned, bequeathed, 4
transferred, or exclusively licensed their name, voice, or likeness rights; or 5
(c) In the case of an individual who performs music and receives remuneration 6
for his or her performances and has not authorized the use at issue, by any 7
person or entity that has entered into a contract for the individual’s 8
exclusive personal services as a recording artist or an exclusive license to 9
distribute sound recordings that capture the individual’s audio 10
performances. 11
(10) In evaluating any defense to an alleged violation of subsection (4) of this section 12
under the First Amendment to the Constitution of the United States, the public 13
interest in access to the use shall be balanced against the intellectual property 14
interest in the name, voice, or likeness. Factors to be considered shall include 15
whether: 16
(a) The use is transient or negligible; 17
(b) The use is commercial; 18
(c) The individual whose name, voice, or likeness is at issue is necessary for 19
and relevant to the primary expressive purpose of the work in which the use 20
appears; and 21
(d) The use competes with or otherwise adversely affects the value of the work 22
of the owner or licensee of the name, voice, or likeness rights at issue. 23
(11) No civil action shall be maintained under the provisions of this section unless it is 24
commenced within four (4) years after the party seeking to bring the claim 25
discovered, or should have reasonably discovered, the violation. 26
(12) Nothing in this section shall be construed to limit any rights an individual may 27 UNOFFICIAL COPY 24 RS BR 1661
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have under any other law providing protections against the unauthorized use of 1
an individual’s name, voice, or likeness. 2