South Dakota
CHAPTER 21-64
http://sdlegislature.gov/Statutes/Codified_Laws/DisplayStatute.aspx?Type=Statute&Statute=21-64
UNAUTHORIZED COMMERCIAL USE OF PERSONALITY’S RIGHT OF PUBLICITY
21-64-1 Definitions.
21-64-2 Use of personality’s right of publicity for commercial purpose without consent prohibited.
21-64-3 Application of chapter.
21-64-4 Termination of personality’s right of publicity.
21-64-5 Cause of action for violation of personality’s right of publicity.
21-64-6 Permitted uses of personality’s right of publicity.
21-64-7 Permitted use of name to truthfully identify personality as author or performer.
21-64-8 Permitted use in connection with broadcast or reporting of event or topic of public interest.
21-64-9 Permitted use where commercial value results from formal charges or conviction of crime.
21-64-10 Registration prerequisite to recovery by successor in interest.
21-64-11 Registration of claim of right of publicity by successor in interest–Posting on secretary of state’s website.
21-64-12 Exclusive remedy.
21-64-1. Definitions. Terms used in this chapter mean:
(1) “Commercial purpose,” the use of an aspect of a personality’s right of publicity in connection with a product, merchandise, goods, service, or commercial activity; for advertising or soliciting purchases of a product, merchandise, goods, service, or for promoting a commercial activity; or for the purpose of fund-raising;
(2) “Personality,” a living or deceased natural person who is a citizen of this state, or who died domiciled in this state whose name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism identifies a specific person and has commercial value, whether or not the person uses or authorizes the use of the person’s rights of publicity for a commercial purpose that serves to identify a specific person;
(3) “Right of publicity,” a personality’s property interest in the personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism. Source: SL 2015, ch 126, § 1.
21-64-2. Use of personality’s right of publicity for commercial purpose without consent prohibited. No person may use any aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for seventy years after the death of the personality without the express written consent of the personality, or if the personality is deceased without the express written consent of the personality’s next of kin or other person or entity that owns the right of publicity.
Source: SL 2015, ch 126, § 2.
21-64-3. Application of chapter. The provisions of this chapter apply to a personality who is deceased prior to July 1, 2015.
Source: SL 2015, ch 126, § 3.
21-64-4. Termination of personality’s right of publicity. A personality’s right of publicity terminates if the personality is deceased and there is no living next of kin of the personality and the personality has not assigned his or her rights.
Source: SL 2015, ch 126, § 4.
21-64-5. Cause of action for violation of personality’s right of publicity. The personality, or if the personality is deceased, the personality’s next of kin or other owner of the right of publicity, has a cause of action for a violation of a personality’s right of publicity against the person for any violation of § 21-64-2. If the court finds a violation of § 21-64-2, the court may order:
(1) Temporary or permanent injunctive relief;
(2) Damages in the amount of one thousand dollars or the actual damages, including profits derived from the unauthorized use, whichever amount is greater;
(3) In determining a defendant’s profits, the plaintiff is required to prove the gross revenue attributable to the unauthorized use, and the defendant is required to prove properly deductible expenses; and
(4) If the court finds that the violation of § 21-64-2 was knowing, willful, or intentional, treble, but not computed on the defendant’s profits, or punitive damages, as the plaintiff elects. Source: SL 2015, ch 126, § 5.
21-64-6. Permitted uses of personality’s right of publicity. The provisions of this chapter do not apply to the use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms in any:
(1) Literary work, theatrical work, musical composition, audio visual work, film, radio, or television program;
(2) Material that has political or newsworthy value;
(3) Original work of fine art;
(4) Promotional material or advertisement, for a news reporting or entertainment medium, that uses all or part of a past edition of the medium’s original broadcast and does not convey or suggest that the personality endorses the news reporting or entertainment medium;
(5) An advertisement of commercial announcement for a use described in this section; and
(6) Any use of a right of publicity before December 31, 2014.
Source: SL 2015, ch 126, § 6.
21-64-7. Permitted use of name to truthfully identify personality as author or performer. The provisions of this chapter do not apply to the use of a personality’s name to truthfully identify the personality as the author of a written work or a performer of a recorded performance if the written work or recorded performance is otherwise rightfully reproduced, exhibited, or broadcast.
Source: SL 2015, ch 126, § 7
21-64-8. Permitted use in connection with broadcast or reporting of event or topic of public interest. The provisions of this chapter do not apply to the use of a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism in connection with a broadcast or reporting of an event or a topic of general or public interest including unauthorized biographies.
Source: SL 2015, ch 126, § 8.
21-64-9. Permitted use where commercial value results from formal charges or conviction of crime. The provisions of this chapter do not apply to a personality whose name, voice, signature, photograph, image, likeness, distinctive appearance, gesture, or mannerism has commercial value solely because the personality has been formally charged with or convicted of a crime.
Source: SL 2015, ch 126, § 9.
21-64-10. Registration prerequisite to recovery by successor in interest. A successor in interest to the right of publicity of a deceased personality pursuant to this chapter or a licensee thereof may not recover damages or equitable relief for a use prohibited pursuant to this chapter that occurs before the successor in interest registers a claim of right of publicity pursuant to § 21-64-11.
Source: SL 2015, ch 126, § 10.
21-64-11. Registration of claim of right of publicity by successor in interest–Posting on secretary of state’s website. Any person claiming to be a successor in interest to the right of publicity of a deceased personality pursuant to this chapter or a licensee thereof may register that claim with the secretary of state on a form prescribed by the secretary of state and upon payment of a one hundred dollar filing fee to the secretary of state. The form shall be verified and shall include the name and date of death of the deceased personality, the name and address of the claimant, the basis of the claim, and the rights claimed.
Upon receipt and after filing of any document pursuant to this section, the secretary of state shall post the document along with the entire registry of persons claiming to be a successor in interest to the right of publicity of a deceased personality or a registered licensee pursuant to this section on the secretary of state’s website.
The secretary of state may microfilm or reproduce by other technique, any filing or document filed pursuant to this section and may then destroy the original filing or document. The secretary of state may destroy the microfilm or other reproduction of the filing or document seventy years after the death of the personality named therein.
A claim registered pursuant to this section is a public record.
Source: SL 2015, ch 126, § 11.
21-64-12. Exclusive remedy. The provisions of this chapter constitute the sole and exclusive bases regarding a misappropriation of name, image, or likeness of a personality and the personality’s right of publicity, and any remedy for a violation of such rights.
Source: SL 2015, ch 126, § 12.