SB354: SB354 Torts; cause of action for appropriating an individual's indicia of identity; provide

25 LC 56 0394 Senate Bill 354 By: Senator Harrell of the 40th A BILL TO BE ENTITLED AN ACT To amend Title 51 of the Official Code of Georgia Annotated, re lating to torts, so as to1 provide for a cause of action for appropriating an individual's indicia of identity; to provide2 for a right to protection against the appropriation of an indiv idual's indicia of identity; to3 provide for assignment or licensing of such right; to provide f or damages; to provide for4 other remedies; to provide for exceptions; to provide for definitions; to provide for statutory5 construction; to provide for related matters; to repeal conflic ting laws; and for other6 purposes.7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:8 SECTION 1.9 Title 51 of the Official Code of Georgia Annotated, relating to torts, is amended by enacting10 a new chapter to read as follows:11 S. B. 354 - 1 - 25 LC 56 0394 "CHAPTER 1712 51-17-1.13 As used in this chapter, the term:14 (1) 'Appropriation' means and includes any unauthorized use of another's indicia of15 identity for the user's own benefit, commercially or otherwise.16 (2) 'Indicia of identity' means and includes an individual's i mage, likeness, voice,17 signature, or other unique identifying features, including one' s face, mannerisms,18 distinctive appearance, tattoos, visible body modifications, bi rthmarks, and distinctive19 speech patterns, including speech and language disorders. The use of an individual's20 name, without any other representation of the person, is not co nsidered an indicia of21 identity.22 (3) 'Likeness' means any phot ograph, photographi c reproduction , digital image, or23 artifact, still or moving, or any film, videotape, digital rec ording, or other similar24 medium of any individual, so that the individual is readily identifiable.25 (4) 'Voice' means a sound in a medium that is readily identifi able and attributable to a26 particular individual, regardless of whether the sound contains the actual voice or a27 simulation of the voice of the individual.28 51-17-2.29 Every individual has a right to protection against the appropri ation of such individual's30 indicia of identity by another person without such individual's prior consent or, in the case31 of a minor, the prior consent of such minor's parent or legal guardian, or, in the case of a32 deceased individual, the consent of the executor or administrator, heirs, or devisees of such33 deceased individual.34 S. B. 354 - 2 - 25 LC 56 0394 51-17-3.35 (a) The protections provided for in Code Section 51-17-2 shall be deemed exclusive to the36 individual, whether or not such rights were commercially exploi ted by such individual37 during his or her lifetime, subject to the assignment or licensing of such rights during such38 individual's lifetime, and to the executors, heirs, assigns, or devisees for a period of at least 39 ten years after the death of the individual.40 (b)(1) For individuals who are not public figures, the exclusi ve right to the use of an41 individual's indicia of identity is only terminated by the assignment or licensing of rights.42 (2) Except as provided for in paragraph (3) of this subsection , for public figures, the43 exclusive right to nonsexual us e of an individual' s indicia of identity is terminated by44 proof of the nonuse of the indicia of identity of any individual for commercial purposes45 by an executor, assignee, heir, or devisee for a period of two years subsequent to the46 initial ten-year period following such public figure's death.47 (3) The right to sexual use of an individual's indicia of iden tity shall be extinguished48 upon such individual's death. Any heir of such deceased individual shall have a cause of49 action against any person who begins or persists in the sexual use of an individual's50 indicia of identity following such individual's death.51 (c) As used in this Code section, the term 'use' shall include the public availability of a52 sound recording or audiovisual work in which the individual's likeness or voice is readily53 identifiable.54 51-17-4.55 A person shall be liable in a civil action for appropriation of indicia of identity if such56 person:57 (1) Uses or infringes upon the use of an individual's indicia of identity in any medium,58 in any manner directed to any person other than such individual , for purposes of59 advertising products, merchandise, goods, or services, or for p urposes of fundraising,60 S. B. 354 - 3 - 25 LC 56 0394 solicitation of donations, purchases of products, merchandise, goods, or services, selling61 such indicia of identity, or integrating indicia of identify into machine learning training62 with knowledge that use of such indicia of identity was not authorized by the individual,63 executor or administrator, heirs, or devisees, or in the case of a minor, the minor's parent64 or legal guardian;65 (2) Publishes, performs, distributes, transmits, sells, or otherwise makes available to the66 public an individual's indicia of identity, with knowledge that use of such indicia of67 identity was not authorized by the individual, executor or admi nistrator, heirs, or68 devisees, or in the case of a minor, the minor's parent or legal guardian; or69 (3) Makes available an algorithm, software, tool, or other technology, service, or device,70 where a purpose or function of such algorithm, software, tool, or other technology,71 service, or device is the production of a particular, identifia ble individual's voice or72 likeness, with knowledge that distributing, transmitting, or otherwise making available73 the voice or likeness was not authorized by the individual, exe cutor or administrator,74 heirs, or devisees, or in the case of a minor, the minor's parent or legal guardian.75 51-17-5.76 (a) In any cause of action pursuant to this chapter, an individual shall be entitled to recover77 the greater of $1,000.00 or actual damages suffered. Such individual shall also be entitled78 to recover any profits that are attributable to such appropriation which are not taken into79 account in computing the actual damages. Profit or lack thereof from the appropriation or80 infringement of an individual's rights shall not be a criterion of determining liability.81 (b) The court having jurisdiction for any action arising pursuant to this chapter may grant82 injunctions on such terms as it may deem reasonable to prevent or restrain the83 appropriation of an individual's indicia of identity.84 S. B. 354 - 4 - 25 LC 56 0394 51-17-6.85 (a) The use of an individual's indicia of identity in a commer cial medium shall not86 automatically constitute unlawful appropriation solely because the material containing such87 use is commercially sponsored or contains paid advertising. Any determination of whether88 such use was for the purpose of advertising or solicitation shall consider whether or not the89 use of the individual's indicia of identity was so directly con nected with the commercial90 sponsorship or with the paid advertising as to constitute a but -for cause of any such91 advertising or sponsorship.92 (b) Nothing in this chapter shall impose liability for the documentation of an individual's93 presence in places where an individual does not have a reasonable expectation of privacy.94 51-17-7.95 (a) Nothing in this chapter shall apply to activities protected by the First Amendment to96 the United States Constitution, including, but not limited to, satire, parody, works of artistic97 expression, or works of journalism by bona fide news organizations.98 (b) Nothing in this chapter shall apply to the owners or employees of any medium used for99 advertising, including, but not limited to, newspapers, magazin es, radio and television100 stations, billboards, and transit advertisements, who have published or disseminated any101 advertisement or solicitation in violation of this chapter, unless it is established that such102 owners or employees had knowledge or reasonably should have known of the appropriation103 of the individual's indicia of identity as prohibited by this chapter.104 (c) Nothing in this chapter shall be construed to impose a dut y upon a provider of an105 interactive computer service, as defined in Section 230 of Titl e 47 of the United States106 Code, to review or enforce compliance with this chapter by third-party content providers."107 SECTION 2.108 All laws and parts of laws in conflict with this Act are repealed.109 S. 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