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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 such that the individual is depicted in a manner in which 8
they did not actually appear; 9
(b) "Digital technology" means a technology or device now known or hereafter 10
created, including but not limited to computer software, artificial 11
intelligence, machine learning, quantum computing, or other similar 12
technologies or devices; 13
(c) "Digital voice replica" means an audio rendering that is created or altered 14
in whole or in part using digital technology and is fixed in a sound 15
recording or audiovisual work which includes replications, imitations, or 16
approximations of the voice of an individual engaging in expression that the 17
individual did not actually perform; 18
(d) "Individual" means a natural person, living or dead, and includes the estate 19
of an incompetent or deceased individual; 20
(e) "Likeness" means an actual or simulated physical, digital, or other 21
depiction or representation of an individual, regardless of the means of 22
creation, that is readily identifiable as the individual by virtue of the 23
individual's face, outward appearance, or other distinguishing 24
characteristic, or other information displayed in connection with the readily 25
identifiable characteristics of the individual; 26
(f) "Person" means any individual, firm, association, partnership, corporation, 27 UNOFFICIAL COPY 24 RS SB 317/GA
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joint stock company, syndicate, receiver, common law trust, conservator, 1
statutory trust, or any legal or commercial entity organized, formed, or 2
created, whether foreign or domestic. "Person" includes nonprofit 3
corporations, associations, educational and religious institutions, political 4
parties, community, civic, legal, or commercial entities; 5
(g) "Personalized cloning service" means an algorithm, software, tool, or other 6
technology, service, or device the primary purpose or function of which is to 7
produce one (1) or more digital voice replicas or digital depictions of 8
particular, identified individuals; and 9
(h) "Voice" means sounds in any medium containing the actual voice or a 10
simulation of the voice of an individual, whether recorded or generated by 11
computer, artificial intelligence, algorithm, or other digital technology, 12
service, or device, to the extent that the individual depicted or simulated is 13
readily identifiable from the sound of the voice depicted or simulated, or 14
from other information displayed in connection with the voice or simulation 15
of the voice. 16
(2) Every individual shall have property rights in his or her name, voice, and 17
likeness. Whether or not an individual commercially benefited from his or her 18
rights during the individual's lifetime, his or her rights shall: 19
(a) Be freely transferrable and descendible, in whole or in part; 20
(b) Not expire upon the death of the individual; and 21
(c) Be exclusive to the individual during his or her lifetime, subject to the 22
transfer of rights as provided in paragraph (a) of this subsection; and to the 23
executors, heirs, transferees, or devisees for a period of ten (10) years after 24
the death of the individual unless: 25
1. The name, voice, or likeness of an individual remains in use for 26
commercial purposes by all executors, heirs, transferees, or devisees; 27 UNOFFICIAL COPY 24 RS SB 317/GA
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or 1
2. All executors, transferees, heirs, or devisees of the individual 2
exercising his or her property rights are deceased. 3
(3) An agreement authorizing the use of digital depiction or digital voice replica for a 4
new performance of the individual in an advertisement or expressive work shall 5
be valid if the agreement is not unconscionable and, at the time the agreement 6
was executed: 7
(a) 1. The individual exercising his or her property rights was eighteen (18) 8
years of age or older, or, if under eighteen (18) years of age, the 9
agreement is approved by a parent, guardian, or court in accordance 10
with applicable state law; 11
2. The individual exercising his or her property rights was represented by 12
counsel; and 13
3. The agreement was in writing; or 14
(b) The terms of the agreement are governed by a collective bargaining 15
agreement. 16
(4) A person shall be liable for damages as set forth in subsections (5) or (6) of this 17
section if the person, without consent of the individual exercising his or her 18
property rights or the holder of the property rights: 19
(a) Distributes, transmits, or otherwise makes available to the public a 20
personalized cloning service; 21
(b) Publishes, performs, distributes, transmits, or makes available to the public 22
a digital voice replica or digital depiction with knowledge that the digital 23
voice replica or digital depiction was not authorized by the individual or the 24
holder of the property rights; or 25
(c) Materially contributes to, directs, or facilitates any of the conduct set forth 26
in paragraphs (a) or (b) of this subsection with knowledge that the 27 UNOFFICIAL COPY 24 RS SB 317/GA
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individual or the holder of the property rights has not consented to the 1
conduct. 2
(5) A person who violates subsection (4)(a) of this section shall be liable to the 3
injured person for fifty thousand dollars ($50,000) per violation per person or the 4
actual damages suffered by the person, whichever is greater, plus any profits 5
from the unauthorized use of the individual's name, voice, or likeness. 6
(6) A person who violates subsection (4)(b) or (c) of this section shall be liable to the 7
injured person for five thousand dollars ($5,000) per violation per person or the 8
actual damages suffered by the person, whichever is greater, plus any profits 9
from the unauthorized use of the individual's name, voice, or likeness. 10
(7) (a) In establishing profits under subsection (5) or (6) of this section, the injured 11
party or parties shall be required only to present proof of the gross revenue 12
being either directly or indirectly attributable to the unauthorized use. 13
(b) The person who violated this section shall be required to prove his or her 14
expenses deductible therefrom. 15
(c) Punitive damages and reasonable attorneys’ fees may also be awarded to 16
the injured party or parties. 17
(8) It shall not be a defense to an allegation of a violation of subsection (4) of this 18
section that the unauthorized user displayed or otherwise communicated to the 19
public a disclaimer stating that use was unauthorized or that the individual or 20
owner of the individual's rights did not participate in the creation, development, 21
distribution, or dissemination of the unauthorized digital depiction, digital voice 22
replica, or personalized cloning services. 23
(9) An action to enforce this section may be brought by: 24
(a) The individual whose name, voice, or likeness is at issue; 25
(b) Any other person to which the individual has assigned, bequeathed, 26
transferred, or exclusively licensed their name, voice, or likeness rights; or 27 UNOFFICIAL COPY 24 RS SB 317/GA
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(c) In the case of an individual who performs music and receives remuneration 1
for his or her performances and has not authorized the use at issue, by any 2
person or entity that has entered into a contract for the individual’s 3
exclusive personal services as a recording artist or an exclusive license to 4
distribute sound recordings that capture the individual’s audio 5
performances. 6
(10) To the extent such use is protected by the First Amendment to the United States 7
Constitution, it shall not be a violation if the use is: 8
(a) By a news-gathering organization as defined in KRS 189.635(8)(b); 9
(b) In connection with any news, public affairs, sports broadcast, or account; 10
(c) For purposes of comment, criticism, scholarship, satire, or parody; 11
(d) A representation of an individual as himself or herself in audiovisual works 12
as defined in 17 U.S.C. sec. 101, unless the work containing the use is 13
intended to create, and does create, the false impression that the work is an 14
authentic recording in which the individual participated; 15
(e) Fleeting or negligible; or 16
(f) In an advertisement or commercial announcement for a work described in 17
this subsection. 18
(11) No civil action shall be maintained under the provisions of this section unless it is 19
commenced within four (4) years after the party seeking to bring the claim 20
discovered, or should have reasonably discovered, the violation. 21
(12) Nothing in this section shall be construed to limit any rights an individual may 22
have under KRS 391.170 or any other statutory or common law providing 23
protections against the unauthorized use of an individual’s name, voice, or 24
likeness. 25