Section 1. Purpose and scope.  

This Act protects an individual’s right of publicity, regulates the unauthorized commercial use of an individual’s persona and modified facsimiles, establishes civil remedies, regulates malicious deepfake recordings, and provides related civil and criminal remedies.  

Section 2. Definitions.  

• (A) “Persona” means an individual’s name, voice, signature, photograph, image, likeness, or distinctive appearance, if any of these aspects have commercial value.  
• (B) “Commercial purpose” means the use of or reference to an aspect of an individual’s persona in any of the following manners:  
  1. On or in connection with a place, product, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;  
  2. For advertising or soliciting the purchase of products, merchandise, goods, services, or other commercial activities not expressly exempted under this chapter;  
  3. For the purpose of promoting travel to a place;  
  4. For the purpose of fundraising.  
• (C) “Name” means the actual, assumed, or clearly identifiable name of or reference to a living or deceased individual that identifies the individual.  
• (D) “Right of publicity” means the property right in an individual’s persona to use the individual’s persona for a commercial purpose.  
• (E) “Trier of fact” means the jury or, in a nonjury action, the court.  
• (F) “Written consent” includes written, electronic, digital, or any other verifiable means of authorization.  
• (G) “Institution of higher education” means a state institution of higher education as defined in [STATE CODE], a private nonprofit college or university located in this state that possesses a certificate of authorization issued by this states issuing authority, or a school located in this state that possesses a certificate of registration and one or more program authorizations issued by the state board of career colleges and schools under [STATE CODE].  

Section 3. Unauthorized Use of Persona.  

• (A) Except as otherwise provided in this section, a person shall not use any aspect of an individual’s persona for a commercial purpose, or a modified facsimile of an individual’s persona wherein a reasonable trier of fact would confuse the modified facsimile and the individual:  
  1. During the individual’s lifetime;  
  2. For a period of sixty years after the date of the individual’s death; or  
  3. For a period of ten years after the date of death of a deceased member of the [STATE] National Guard or the Armed Forces of the United States.  
• (B) A person may use an individual’s persona for a commercial purpose during the individual’s lifetime if the person first obtains the written consent to use the individual’s persona from a person specified in Section 4 of this Act. If an individual whose persona is at issue has died, a person may use the individual’s persona for a commercial purpose if either of the following applies:  
  1. The person first obtains the written consent to use the individual’s persona from a person specified in Section 4 of this Act who owns the individual’s right of publicity.  
  2. The name of the individual whose persona is used was the name of a business entity or a trade name at the time of the individual’s death.  
• (C) Subject to the terms of any agreement between a person specified in Section 4 of this Act and a person to whom that person grants consent to use an individual’s right of publicity, a consent obtained before the death of an individual whose persona is at issue remains valid after the individual’s death.  
• (D) For purposes of this section, the following uses do not constitute uses for which consent is required under subsection (a):  
  1. A use of an aspect of an individual’s persona in connection with any news, public affairs, sports broadcast, or account.  
  2. A use of an aspect of an individual’s persona in connection with any political campaign and in compliance with applicable election laws.
•  (E) The owners or employees of any medium used for advertising, including but not limited to a newspaper, magazine, radio or television network or station, cable television system, billboard, transit advertisement, and global communications network, by whom any advertisement or solicitation in violation of this section is published or disseminated, are not liable under this section unless it is established that those owners or employees had knowledge of the unauthorized use of the persona prohibited by this section.  

Section 4. Authority to Grant Consent.  

• (A) Except as otherwise expressly provided in an agreement transferring an aspect of an individual’s right of publicity, only the following persons may grant consent to use an individual’s persona for a commercial purpose:  
  1. A person or persons, including the individual whose right of publicity is at issue, who collectively own more than fifty percent of the individual’s right of publicity, subject to the terms of any other licenses regarding that right of publicity.  
  2. A person, including a licensee of the individual’s right of publicity, who is expressly authorized in writing to grant consent by a person or persons specified in subsection (a)(1).  
• (B) A person or persons specified in subsection (a) may do one or both of the following:  
  1. Grant a person or persons consent to use all or part of an individual’s right of publicity for a commercial purpose.  
  2. Limit, restrict, or place conditions on how a person or persons to whom consent is granted pursuant to this section may use an individual’s right of publicity.  

Section 5. Civil Actions to Enforce Right of Publicity.  

• (A) The following persons may bring a civil action to enforce the rights set forth in this Act:  
  1. A person or persons, including an individual whose right of publicity is at issue, who collectively own all of an individual’s right of publicity, subject to any licenses regarding that right of publicity.  
  2. A person, including a licensee of an individual’s right of publicity, who is expressly authorized in writing by the owner or owners of an individual’s right of publicity to bring a civil action.  
  3. Except as otherwise expressly provided in an agreement transferring an aspect of an individual’s right of publicity and subject to subsection (c), a person to whom ownership or any portion of ownership of an individual’s right of publicity has been transferred.  
• (B) Before bringing a civil action under this section, a person who owns less than all of an individual’s right of publicity shall notify the individual whose right of publicity is the subject of the proposed action, if living, by electronic mail or regular mail addressed to the last known address of that individual. The person also shall notify any persons to whom the individual’s right of publicity has been transferred of the proposed civil action by one of the following means:  
  1. Regular mail addressed to the last known address of each transferee.  
  2. Electronic mail to each transferee.  
  3. If the address or electronic mail address of the transferee is not known, publication in a newspaper of general circulation in the county in which the individual whose right of publicity is the subject of the proposed civil action resides, or, in the case of a deceased individual, in the county in which the individual’s estate has been or would have been admitted to probate.  
• (C) The individual whose right of publicity is the subject of the proposed civil action brought under this section, and any person to whom ownership of that right of publicity has been transferred, may object to the proposed civil action within:  
  1. Twenty days from the date of mailing of the notice required under subsection (b); or  
  2. Sixty days from the date of publication required under subsection (b)(3), by giving written notice of the objection to the person proposing the civil action.  
  3. If the individual or transferee does not object to the civil action within the applicable time period specified in this subsection, the individual or transferee is forever barred from objecting to that action.  
  4. A person may not bring a civil action under this section if a person or persons, including the individual whose right of publicity is the subject of the proposed civil action, who collectively own more than fifty percent of the individual’s right of publicity object to the proposed civil action.  
• (D) A person, other than a licensee of an individual’s right of publicity, who owns less than all of an individual’s right of publicity and who brings a civil action under this Act shall account to any other person owning an interest in that right of publicity to the extent of the other person’s interest with respect to any net recovery in a civil action, less the person’s costs of collection and reasonable attorney’s fees.  

Section 6. Exceptions and Constitutional Protections.  

• (A) This Act does not apply to any of the following:  
  1. Any of the following expressive works:  
     • (a)A literary work, dramatic work, fictional work, historical work, audiovisual work, or musical work regardless of the media in which the work appears or is transmitted, other than:  
       • i. An advertisement or commercial announcement not exempt under subsection (a)(1)(D); or  
       • ii. An audiovisual work with a modified facsimile of an individual’s persona wherein a reasonable trier of fact would confuse the modified facsimile and the individual.  
     • (b) Material that has political or newsworthy value.  
     • (c) Original works of fine art.  
     • (d) An advertisement or commercial announcement for a use permitted under subsection (a)(1)(A), (B), or (C).  
  2. The use of an individual’s name to truthfully identify the individual as the author of or contributor to a written work or the performer of a recorded performance under circumstances in which the written work or the recorded performance is otherwise lawfully reproduced, exhibited, or broadcast.  
  3. The use of an aspect of an individual’s persona in connection with the broadcast or reporting of an event or topic of general or public interest.  
  4. The use of the persona of an individual solely in the individual’s role as a member of the public if the individual is not named or otherwise singled out as an individual.  
  5. A use of an individual’s persona by an institution of higher education if all of the following apply:  
     • (a)The individual is or was a student at, or a member of the faculty or staff of, the institution of higher education.  
     • (b) The use of the individual’s persona is for educational purposes or for the promotion of the institution of higher education and its educational or institutional objectives.  
  6. A use of the persona of an individual that is protected by the First Amendment to the United States Constitution, so long as the use does not convey or reasonably suggest endorsement by the individual whose persona is at issue.  
  7. A radio or television broadcasting station, including a cable or satellite television operator, programmer, producer, or streaming service, when the station receives consideration in exchange for broadcasting, distributing, or exhibiting material that would otherwise be prohibited by this Act.  
• (B) Nothing in this Act affects rights or privileges recognized under the [STATE Constitution] or the United States Constitution.  

Section 7. Additional Definitions.  

For purposes of this Act:  

• (A) “Deepfake recording” means any visual or audio media in an electronic format, video recording, or sound recording that is created or altered in a manner such that it falsely appears to be an authentic record of the actual speech or conduct of an individual depicted in the media or recording.  

• (B) “Malicious deepfake recording” means a deepfake recording created or altered by, or on behalf of, a person that intends to cause harm to another person due to the false nature of the speech or conduct recorded or depicted therein.  

• (C) “Recording” means visual or audio media in an electronic format, video recording, or sound recording.  

Section 8. Prohibited Acts Involving Malicious Deepfake Recordings.  

• (A) Except as otherwise provided in this section, no person shall, without written consent of the depicted individual, do either of the following:  
  1. Prepare, produce, or develop any malicious deepfake recording of an individual’s voice, image, or likeness to distribute to, exhibit to, or exchange with others.  
  2. Offer to distribute, exhibit, or exchange with others a malicious deepfake recording.  
•  (B) No person shall recklessly distribute any malicious deepfake recording. 
• (C) Subsections (a) and (b) shall not apply to any malicious deepfake recording that meets either of the following criteria:  
  1. The material does not include a political or campaign advertisement and appears in a context that would cause a reasonable person to believe that the material is inauthentic, such as in a parody or fictionalized movie.  
  2. The material, which may include a political or campaign advertisement, includes a disclaimer to which all of the following apply:  
     • (a) It is included in a conspicuous place on the material or is contained or included within the media or recording.  
     • (b) It states that the media or recording has been materially altered in a manner that renders it fictionalized and inauthentic.  
     • (c) It identifies the name and contact information of the entity that is responsible for creating or distributing the media or recording.  
     • (d) The exceptions provided in subsection (c) do not apply to a malicious deepfake recording that:  
       • (1) Is pornographic; or  
       • (2) Falsely depicts or records the speech or conduct of an individual who is under seventeen years of age.  
     • (e) Subsections (a) and (b) shall not apply to a radio or television broadcasting station, including a cable or satellite television operator, programmer, producer, or streaming service, when the station receives consideration in exchange for broadcasting, distributing, or exhibiting a malicious deepfake recording.  

Section 9. Civil Remedies for Malicious Deepfake Recordings.  

• (A) An individual injured by a violation of Section 8 or (b) of this Act may commence a civil action in a court of competent jurisdiction against the person committing the violation and may recover any of the following:  
  1. Either actual damages or, at the election of the plaintiff, statutory damages in an amount of at least two thousand five hundred dollars and not more than ten thousand dollars, as determined in the discretion of the trier of fact, taking into account:  
     • (a) The willfulness of the violation;  
     • (b)The harm to the individual in question; and  
     • (c)The ability of the defendant to pay a civil damage award.  
  2. Punitive or exemplary damages, if otherwise authorized by law.  
  3. Temporary or permanent injunctive relief.  
• (B) In addition to the remedies described in subsection (a), if the plaintiff establishes by a preponderance of the evidence that the defendant committed extortion in relation to a violation of Section 8 or (b) of this Act, the court shall additionally award the plaintiff statutory damages based on the amount the defendant extorts or attempts to extort from the plaintiff whose voice, image, or likeness is used in the deepfake recording.  
  1. The amount of statutory damages awarded under this subsection shall be subject to the following limitations:  
     • (a) If the value of the thing of value or valuable benefit involved in the extortion is less than one thousand dollars, the amount of statutory damages shall not exceed two thousand five hundred dollars.  
     • (b) If the value of the thing of value or valuable benefit involved in the extortion is at least one thousand dollars, but less than seven thousand five hundred dollars, the amount of statutory damages shall not exceed five thousand dollars.  
     • (c) If the value of the thing of value or valuable benefit involved in the extortion is at least seven thousand five hundred dollars, but less than one hundred fifty thousand dollars, the amount of statutory damages shall not exceed ten thousand dollars.  
     • (d) If the value of the thing of value or valuable benefit involved in the extortion is one hundred fifty thousand dollars or more, the amount of statutory damages shall not exceed fifteen thousand dollars.  
  2. A conviction of or plea of guilty to extortion shall not be required for an award of statutory damages under subsection (b)(1).  
• (C) No action under this section shall be initiated more than four years after the alleged violation of Section 8 or (b) of this Act.  
• (D) The court in which an action under this section is initiated may award the prevailing party reasonable attorney’s fees, court costs, and reasonable expenses associated with the civil action.  
• (E) As part of a final judgment, a court may order the destruction or other reasonable disposition of a malicious deepfake recording, including: 
  1.  Requiring the defendant to take affirmative steps to cause others to take down the malicious deepfake recording; and  
  2. Requiring the defendant to indemnify the plaintiff for any past or future expenses associated with the plaintiff’s efforts to have the malicious deepfake recording removed or destroyed.  
• (F) The trier of fact shall include any profits derived from, and attributable to, a violation of Section 8 or (b) of this Act in calculating the award of actual damages under this section.  

Section 10. Additional Remedies for Deepfake Violations.  

• (A) The remedies provided for in this Act are in addition to any other remedies provided by state or federal statute or common law.  
• (B) Any person who purchases a deepfake recording while holding a good-faith belief that the recording is authentic may commence a civil action in a court of competent jurisdiction against a person who violates Section 8 or (b) of this Act and may recover either of the following:  
  1. Treble the amount of actual economic damages.  
  2. At the election of the plaintiff, statutory damages in the amount of two hundred fifty dollars.  

Section 11. Extortion and Sexual Extortion.  

• (A) For purposes of this section:  
  1. “Elderly person” and “disabled adult” have the meanings provided by applicable law.  
  2. “Information service” and “telecommunications service” have the meanings provided by the Telecommunications Act of 1996, 47 U.S.C. § 153, as amended.  
  3. “Interactive computer service” has the meaning provided by the Telecommunications Act of 1996, 47 U.S.C. § 230, as amended.  
  4. “Nudity,” “sexual activity,” and “sexual excitement” have the meanings provided by applicable law.  
  5. “Private images” means images of sexual activity, masturbation, sexual excitement, nudity, bestiality, extreme or bizarre violence, cruelty, or brutality, or human bodily functions of elimination.  
  6. “Threat” includes a direct threat and a threat by innuendo.  
• (B) No person, with purpose to obtain any valuable thing or valuable benefit or to induce another to do an unlawful act, shall do any of the following:  
  1. Threaten to commit any felony.  
  2. Threaten to commit any offense of violence.  
  3. Violate applicable menacing or aggravated menacing laws.  
  4. Utter or threaten any calumny against any person. 
  5. Expose or threaten to expose any matter tending to subject any person to hatred, contempt, or ridicule, or to damage any person’s personal or business reputation, or to impair any person’s credit.  
  6. Distribute, exhibit, or exchange a malicious deepfake recording that falsely depicts or records the speech or conduct of another individual in violation of this Act, or threaten to do so.  
• (C) A person who violates subsection (b) is guilty of extortion.  
• (D) No person, with purpose to do any of the following, shall threaten to release, exhibit, or distribute the private images of another:  
  1. Compel or attempt to compel the other person, against the other person’s will, to perform any act or refrain from performing any act.  
  2. Induce the other person to commit an offense.  
  3. Obtain additional private images from the other person.  
  4. Obtain anything of value from the other person.  
• (E) A person who violates subsection (d) is guilty of sexual extortion.  
  1. Except as otherwise provided in paragraphs (2) and (3), sexual extortion is a felony of the third degree.  
  2. Except as otherwise provided in paragraph (3), sexual extortion is a felony of the second degree if:  
     • (a) The offender previously has been convicted of or pleaded guilty to a violation of subsection (d); or  
     • (b) The offense involves sexual extortion of a person under eighteen years of age, an elderly person, or a disabled adult.  
  3. Sexual extortion is a felony of the first degree if:  
     • (a) The offender previously has been convicted of or pleaded guilty to two or more violations of subsection (d); or  
     • (b) The offender previously has been convicted of or pleaded guilty to an offense involving sexual extortion of a person under eighteen years of age, an elderly person, or a disabled adult and knows or has reason to know the person is under eighteen years of age, an elderly person, or a disabled adult.  
• (F) A prosecution for a violation of subsection (d) does not preclude a prosecution for a violation of subsection (b). One or more acts, a series of acts, or a course of conduct may be prosecuted under subsection (d), subsection (b), or both. However, if an offender is convicted of or pleads guilty to violations of both subsections based on the same conduct involving the same victim, the offenses shall be treated as allied offenses of similar import as provided by applicable law.  
• (G) No person shall assert a cause of action against a provider of an information service, an interactive computer service, or a telecommunications service, or against any agent, employee, or officer thereof, for any injury, death, or loss allegedly arising from the provider’s provision of information, facilities, or assistance pursuant to a court order issued in relation to the investigation or prosecution of an alleged violation of subsection (d).  
  1. A provider of an information service, an interactive computer service, or a telecommunications service, and any agent, employee, or officer thereof, is immune from civil or criminal liability for injury, death, or loss allegedly arising from the provider’s provision of information, facilities, or assistance pursuant to such a court order.  
• (H) Safe Harbor for Service Providers.  
  1. A person shall not be considered to have violated subsection (d) solely for providing access or connection to or from an electronic method of remotely transferring information not under that person’s control, including capabilities incidental to providing such access or connection that do not include creation of the content at issue.  
     • (a) Any person providing such access or connection shall not be liable for any action voluntarily taken in good faith to block the receipt or transmission through its service of information the person believes is, or will be, transmitted in violation of subsection (d).  
  2. Paragraph (1) does not create an affirmative duty to block the receipt or transmission of information believed to violate subsection (d), except as otherwise provided by law.  
  3. Paragraph (1) does not apply to a person who conspires with another person actively involved in the creation or knowing distribution of material in violation of subsection (d), or who knowingly advertises the availability of such material.  
  4. A provider or user of an interactive computer service shall neither be treated as the publisher nor speaker of information provided by another information content provider, nor held civilly or criminally liable for the creation or development of information provided by another information content provider.  
     • (a) Nothing in this paragraph shall be construed as protecting a person from liability to the extent that the person developed or created content in violation of subsection (d).