1 SYNOPSIS:

3 A BILL

4 TO BE ENTITLED

5 AN ACT

7 To repeal Section 41 -9-80, Section 41-9-81, Section 41-

8 9-82, Section 41 -9-83, and Section 41-9-84 of the Code of

9 Alabama.

10 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

11 Section 1. This Act shall be referred to as “Lisa’s

12 Law”.

13 Section 2. Sections 41-9-80, 41 -9-81, 41-9-82, 41-9-83,

14 and 41-9-84, Code of Alabama 1975, are hereby repealed.

15 Section 3. 1. For the purposes of this section:

16 (a) “Crime” means (i) any felony defined in the laws of

17 the state; or (ii) an o ffense in any jurisdiction which

18 includes all of the essential elements of any felony defined

19 in the laws of this state and: (A) the crime victim, as

20 defined in subparagraph (i) of paragraph (d) of this

21 subdivision, was a resident of this state at the time of the

22 commission of the offense; or (B) the act or acts

23 constituting the offense occurred in whole or in part in this

24 state.

25 (b) “Profits from a crime” means (i) any property

26 obtained through or income generated from the commission of a

 1 crime of which the defendant was convicted; (ii) any property

2 obtained by or income generated from the sale, conversion or

3 exchange of proceeds of a crime, including any gain realized

4 by such sale, conversion or exchange; and (iii) any property

5 which the defendant obtained or income generated as a result

6 of having committed the crime, including any assets obtained

7 through the use of unique knowledge obtained during the

8 commission of, or in preparation for the commission of, a

9 crime, as well as any property obtained by or in come

10 generated from the sale, conversion or exchange of such

11 property and any gain realized by such sale, conversion or

12 exchange.

13 (c) “Funds of a convicted person” means all funds and

14 property received from any source by a person convicted of a

15 specified crime, or by the representative of such person as

16 defined in this Section excluding child support and e arned

17 income, where such person is an inmate serving a sentence

18 with the Alabama Department of C orrections or a prisoner

19 confined at a local correctional facility or federal

20 correctional institute, and includes funds that a

21 superintendent, sheriff or municipal official receives on

22 behalf of an inmate or prisoner and deposits in an inmate

23 account to the credit of the inmate or deposits in a prisoner

24 account to the credit of the prisoner .

25 (d) “Crime victim” means (i) the victim of a crime; (ii)

26 the surviving spouse of the victim if the victim is deceased,

 1 or if there is no surviving spouse, the next surviving person

2 or surviving group of people in the order of intestate

3 succession as listed in Section 43 -8-42; (iii) the Crime

4 Victims Compensation Commission or other governmental agency

5 that has received an application for or provided financial

6 assistance or compensation to the victim.

7 (e) “Earned income” means income derived from one's own

8 labor or through active participation in a business as

9 distinguished from income from, for example, dividends or

10 investments.

11 (f) “Office” means the Board of Adjustment.

12 (f) “Representative” shall mean one who represents or

13 stands in the place of another person, including but not

14 limited to an agent, an assignee, an attorney, a guardian, a

15 committee, a conservator, a partner, a receiver, an

16 administrator, an executor or an heir of another person, or a

17 parent of a minor.

18 (g) “Specified crime” means any of the crimes listed in

19 Section 17 -3-30.1(c).

20 2. (a) Every person, firm, corporation, partnership,

21 association or other legal entity, or representative of such

22 person, firm, corporation, partnership, association or

23 entity, which kn owingly contracts for, pays, or agrees to

24 pay: (i) any profits from a crime as defined in paragraph (b)

25 of subdivision one of this section, to a person charged with

26 or convicted of that crime, or to the representative of such

 1 person as defined in this Section; or (ii) any funds of a

2 convicted person, as defined in this Section , where such

3 conviction is for a specified crime and the value, combined

4 value or aggregate value of the payment or payments of such

5 funds exceeds or will exceed five thousand dollars, shall

6 give written notice to the office of the payment or

7 obligation to pay as soon as practicable after discovering

8 that the payment or intended payment constitutes profits from

9 a crime or funds of a convicted person.

10 (b) Notwithstanding subparagraph (ii ) of paragraph (a)

11 of this subdivision, whenever the payment or obligation to

12 pay involves funds of a convicted person that a

13 superintendent, sheriff or municipal official receives or

14 will receive on behalf of an inmate serving a sentence with

15 the Alabama Department of Corrections or prisoner confined at

16 a local correctional facility and deposits or will deposit in

17 an inmate account to the credit of the inmate or in a

18 prisoner account to the credit of the prisoner, and the

19 value, combined value or aggregate value of such funds

20 exceeds or will exceed five thousand dollars, the

21 superintendent, sheriff or municipal official shall also give

22 written notice to the office.

23 Further, whenever the state or subdivision of the state

24 makes payment or has an obligation to pay funds of a

25 convicted person, as defined in subparagraph (ii) or (iii) of

26 paragraph (c) of subdivision one of this section, and the

 1 value, combined value or aggregate value of such funds

2 exceeds or will exceed five thousand dollars, the state or

3 subdivision of the state shall also give written notice to

4 the office.

5 In all other instances where the payment or obligation

6 to pay involves funds of a convicted person, as defined in

7 subparagraph (ii) or (iii) of paragraph (c) of subdivision

8 one of this section, and the value, combined value or

9 aggregate value of such funds exceeds or will exceed five

10 thousand dollars, the convicted person who receives or will

11 receive such funds, or the representative of such person as

12 defined in this Section , shall give writte n notice to the

13 office.

14 (c) The office, upon receipt of notice of a contract, an

15 agreement to pay or payment of profits from a crime or funds

16 of a convicted person pursuant to paragraph (a) or (b) of

17 this subdivision, or upon receipt of notice of funds of a

18 convicted person from the superintendent, sheriff or

19 municipal official of the facility where the inmate or

20 prisoner is confined, shall notify all known crime victims of

21 the existence of such profits or funds at their last known

22 address.

23 3. Notwithstandi ng any inconsistent provision of the

24 estates, powers and trusts law or the civil practice law and

25 rules with respect to the timely bringing of an action, any

26 crime victim shall have the right to bring a civil action in

 1 a court of competent jurisdiction to recover restitution

2 and/or money damages from a person convicted of a crime of

3 which the crime victim is a victim, or the representative of

4 that convicted person, within five years of the discovery of

5 any profits from a crime or funds of a convicted person , as

6 those terms are defined in this section. Notwithstanding any

7 other provision of law to the contrary, a judgment obtained

8 pursuant to this section shall not be subject to execution or

9 enforcement against the first one thousand dollars deposited

10 in an inmate account to the credit of the inmate or in a

11 prisoner account to the credit of the prisoner. If an action

12 is filed pursuant to this subdivision after the expiration of

13 all other applicable statutes of limitation, any other crime

14 victims must file any action for damages as a result of the

15 crime within five years of the actual discovery of such

16 profits or funds, or w ithin five years of actual notice

17 received from or notice published by the office of such

18 discovery, whichever is later.

19 4. Upon filing an a ction pursuant to subdivision 3 of

20 this section, the crime victim shall give notice to the

21 office of the filing by delivering a copy of the summons and

22 complaint to the office. The crime victim may also give such

23 notice to the office prior to filing the ac tion so as to

24 allow the office to apply for any appropriate provisional

25 remedies which are otherwise authorized to be invoked prior

26 to the commencement of an action.

 1 5. Upon receipt of a copy of a summons and complaint, or

2 upon receipt of notice from the c rime victim prior to filing

3 the action as provided in subdivision 4 of this section, the

4 office shall immediately take such actions as are necessary

5 to:

6 (a) notify all other known crime victims of the alleged

7 existence of profits from a crime or funds of a convicted

8 person by certified mail, return receipt requested, where the

9 victims' names and addresses are known by the office;

10 (b) publish once every six months for five years from

11 the date it is initially notified by a victim, pursuant to

12 subdivision four of this section, a legal notice in

13 newspapers of general circulation in the county wherein the

14 crime was committed and in counties contiguous to such county

15 advising any crime victims of the existence of profits from a

16 crime or funds of a convicted person . The office may, in its

17 discretion, provide for such additional notice as it deems

18 necessary. The costs of publication may be paid for from the

19 profits from a crime or funds of a convicted person ;

20 (c) avoid the wasting of the assets identified in the

21 complaint as the newly discovered profits from a crime or as

22 funds of a convicted person, in any manner consistent with

23 subdivision six of this section.

24 6. The Attorney General or the office, acting on behalf

25 of the victim(s), shall have the right to apply fo r any and

 1 all provisional remedies that are also othe rwise available to

2 the victim(s).

3 (a) The provisional remedies of attachment, injunction,

4 receivership and notice of pen dency available to the

5 victim(s) under the civil practice law and rules, shall also

6 be available to the Attorney General or the office in all

7 actions under this section.

8 (b) On a motion for a provisional remedy, the moving

9 party shall state whether any other provisional remedy has

10 previously been sought in the same action against the sam e

11 defendant. The court may require the moving party to elect

12 between those remedies to which it would otherwise be

13 entitled.

14 7. (a)(i) Whenever it appears that a person or entity

15 has knowingly and willfully failed to give notice in

16 violation of paragra ph (a) or (b) of subdivision 2 of this

17 section, other than the state, a subdivision of the state, or

18 a person who is a superintendent, sheriff or municipal

19 official required to give notice pursuant to this section,

20 the office shall be authorized to serve a not ice of hearing

21 upon the person or entity by personal service or by

22 registered or certified mail. The notice shall contain the

23 time, place and purpose of the hearing. In addition, the

24 notice shall be accompanied by a petition alleging facts of

25 an evidentiary character that support or tend to support that

26 the person or entity, who shall be named therein as a

 1 respondent, knowingly and willfully failed to give notice in

2 violation of paragraph (a) or (b) of subdivision two of this

3 section. Service of the notice and petition shall take place

4 at least fifteen days prior to the date of the hearing.

5 (ii) The director or any individual designated by the

6 director, shall preside over the hearing, shall administer

7 oaths, may issue subpoenas and shall not be bound by the

8 rules of evidence or civil procedure, but his or her

9 determination shall be based on a preponderance of the

10 evidence. At the hearing, the burden of proof shall be on the

11 office. The office shall produce witnesses and present

12 evidence in support of the alle ged violation, which may

13 include relevant hearsay evidence. The respo ndent, who may

14 appear at the hearing in person or via technological means at

15 the direction of the custodial department with control over

16 the respondent, may retain counsel and may cross -examine

17 witnesses and produce evidence and witnesses in his or her

18 behalf, which may include relevant hearsay evidence. The

19 issue of whether the person who received an alleged payment

20 or obligation to pay committed the underlying crime shall not

21 be re-litigated at the hearing. Where the alleged violation

22 is the failure to give notice of a payment amount involving

23 two or more payments the combined value or aggr egate value of

24 which exceeds five thousand dollars, no violation shall be

25 found unless it is shown t hat such payments were

 1 intentionally structured to conceal their character as funds

2 of a convicted person, as defined in this section.

3 (iii) At the conclusion of the hearing, if the director

4 or designated individual is not satisfied that there is a

5 preponderance of evidence in support of a violation, the

6 director or designated individual shall dismiss the petition.

7 If the director or designated individual is satisfied that

8 there is a preponderance of the evidence that the respondent

9 committed one or more vi olations, the director or designated

10 individual shall so find. Upon such a finding, the director

11 or designated individual shall prepare a written statement,

12 to be made available to the respondent and respondent's

13 counsel, indicating the evidence relied on and the reasons

14 for finding the violation.

15 (iv) The director shall adopt, promulgate, amend and

16 repeal administrative rules and regulations governing the

17 procedures to be followed with respect to hearings, including

18 rules and regulations for the administra tive appeal of a

19 decision made pursuant to this paragraph, provided such rules

20 and regulations are consistent with the provisions of this

21 subdivision.

22 (b)(i) Whenever it is found pursuant to paragraph (a) of

23 this subdivision that a respondent knowingly and willfully

24 failed to give notice in violation of paragraph (a) or (b) of

25 subdivision two of this section, the office shall impose an

26 assessment of up to the amount of the payment or obligation

 1 to pay and a civil penalty of up to one thousand dollars or

2 ten percent of the payment or obligation to pay, whichever is

3 greater. If a respondent fails to pay the assessment and

4 civil penalty imposed pursuant to this paragraph, the

5 assessment and civil penalty may be recovered from the

6 respondent by an action brought by the attorney general, upon

7 the request of the office, in any court of competent

8 jurisdiction. The office shall deposit the assessment in an

9 escrow account pending the expiration of the five year

10 statute of limitations authorized by subdivision three of

11 this section to preserve such funds to satisfy a civil

12 judgment in favor of a person who is a victim of a crime

13 committed by the convicted person to whom such failure to

14 give notice relates.

15 (ii) The office shall then notify any crime victim or

16 crime victims, who may have a claim against the convicted

17 person, of the existence of such moneys. Such notice shall

18 instruct such person or persons that they may have a right to

19 commence a civil action against the convicted person, as well

20 as any other information deemed necessary by the office.

21 (iii) Upon a crime victim's presentation to the office

22 of a civil judgment for damages incurred as a result of the

23 crime, the office shall satisfy up to one hundred percent of

24 that judgment, including costs and disbursement s as taxed by

25 the clerk of the court, with the escrowed fund obtained

26 pursuant to this paragraph, but in no event shall the amount

 1 of all judgments, costs and disbursements satisfied from such

2 escrowed funds exceed the amount in escrow. If more than one

3 such crime victim indicates to the office that they intend to

4 commence or have commenced a civil action against the

5 convicted person, the office shall delay satisfying any

6 judgment, costs and disbursements until the claims of all

7 such crime victims are reduc ed to judgment. If the aggregate

8 of all judgments, costs and disbursement obtained exceeds the

9 amount of escrowed funds, the amount used to partially

10 satisfy each judgment shall be reduced to a pro rata share.

11 (iv) After expiration of the five year statute of

12 limitations period established in subdivision 3 of this

13 section, the office shall review all judgments that have been

14 satisfied from such escrowed funds. In the event no claim was

15 filed or judgment obtained prio r to the expiration of the

16 five year statute of limitations, the office shall return the

17 escrowed amount to the respondent. In the event a claim or

18 claims are pending at the expiration of the statute of

19 limitations, such funds shall remain escrowed until the final

20 determination of all such claims to allow the office to

21 satisfy any judgment which may be obtained by the victim.

22 Upon the final determination of all such claims and the

23 satisfaction of up to one hundred percent of such claims by

24 the office, the office shall be authorized to impose an

25 additional civil penalty of up to one thousand dollars or ten

26 percent of the payment or obligation to pay, whichever is

 1 greater. Prior to imposing any such penalty, the office shall

2 serve a notice upon the respondent by personal service or by

3 registered or c ertified mail of the intent of the office to

4 impose such penalty thirty days after the date of the notice

5 and of the opportunity to submit documentation concerning the

6 office's determination. After imposing and deducting any such

7 additional civil penalty, the office shall distribute such

8 remaining escrowed funds, if any, to the Crime Victims

9 Compensation Fund.

10 (v) Notwithstanding any provision of law, an alleged

11 failure by a convicted person to give notice under this

12 section may not result in proceedings fo r an alleged

13 violation of the conditions of probation, parole, conditional

14 release, post release supervision or supervised release

15 unless: one or more claims were made by a crime victim

16 against the convicted person pursuant to this section, and

17 the office imposes an assessment and/or penalty upon the

18 convicted person pursuant to this section, and the convicted

19 person fails to pay the total amount of the assessment and/or

20 penalty within sixty days of the imposition of such

21 assessment and/or penalty.

22 (vi) Records maintained by the office and proceedings by

23 the office based thereon regarding a claim submitted by a

24 victim or a claimant shall be deemed confidential .

 1 Section 4. As used in Section 5, Section, 6, Section 7,

2 Section 8, and Section 9 , unless the context otherwise

3 requires:

4 (1) “Definable group” means an assemblage of individuals

5 existing or brought together with or without interrelation,

6 orderly form, or arrangement, including, but not limited to,

7 a crowd at any sporting event, a crowd in any street o r

8 public building, the audience at any theatrical or stage

9 production, a glee club, or a baseball team;

10 (2) “Individual” means human being, living or dead;

11 (3) “Likeness” means the use of an image of an

12 individual for commercial purposes;

13 (4) “Person” means any firm, association, partnership,

14 corporation, joint stock company, syndicate, receiver, common

15 law trust, conservator, statutory trust, or any other concern

16 by whatever name known or however organized, formed, or

17 created, and includes not -for-profit corporations,

18 associations, educational and religious institutions,

19 political parties, community, civic, or other organizations;

20 and

21 (5) “Photograph” means any photograph or photographic

22 reproduction, still or moving, or any videotape or live

23 television transmission, of any individual, so that the

24 individual is readily identifiable.

 1 Section 5. (a) Every individual has a property right in

2 the use of that person's name, photograph, or likeness in any

3 medium in any manner.

4 (b) The individual rights provided fo r in subsection (a)

5 constitute property rights and are freely assignable and

6 licensable, and do not expire upon the death of the

7 individual so protected, whether or not such rights were

8 commercially exploited by the individual during the

9 individual's lifetime, but shall be descendible to the

10 executors, assigns, heirs, or devisees of the individual so

11 protected by this part.

12 Section 6. (a) The rights provided for in this part

13 shall be deemed exclusive to the individual, subject to the

14 assignment or licensin g of such rights as provided in Section

15 5, during such individual's lifetime and to the executors,

16 heirs, assigns, or devisees for a period of twenty (20 ) years

17 after the death of the individual.

18 (b)(1) Commercial exploitation of the property right by

19 any executor, assignee, heir, or devisee if the individual is

20 deceased shall maintain the right as the exclusive property

21 of the executor, assignee, heir, or devisee until such right

22 is terminated as provided in this subsection (b).

23 (2) The exclusive right to commercial exploitation of

24 the property rights is terminated by proof of the non -use of

25 the name, likeness, or image of any individual for commercial

26 purposes by an executor, assignee, heir, or devisee to such

 1 use for a period of two (2) yea rs subsequent to the initial

2 twenty (20) year period following the individual's death.

3 Section 7. (a) Any person who knowingly uses or

4 infringes upon the use of another individual's name,

5 photograph, or likeness in any medium, in any manner directed

6 to any person other than such individual, as an item of

7 commerce for purposes of advertising products, merchandise,

8 goods, or services, or for purposes of fund raising,

9 solicitation of donations, purchases of products,

10 merchandise, goods, or services, without such individual' s

11 prior consent, or, in the case of a minor, the prior consent

12 of such minor's parent or legal guardian, or in the case of a

13 deceased individual, the consent of the executor or

14 administrator, heirs, or devisees of such deceased

15 individual, shall be liable to a civil action.

16 (b) In addition to the civil action authorized by this

17 section and the remedies set out in Section 5 , any person who

18 commits unauthorized use as defined in subsection (a) commits

19 a Class A misdemeanor.

20 (c) It is no defense to the unautho rized use defined in

21 subsection (a) that the photograph includes more than one (1)

22 individual so identifiable; provided, that the individual or

23 individuals complaining of the use shall be represented as

24 individuals per se rather than solely as members of a

25 definable group represented in the photograph.

 1 (d) If an unauthorized use as defined in subsection (a)

2 is by means of products, merchandise, goods or other tangible

3 personal property, all such property, including all

4 instrumentalities used in connection w ith the unauthorized

5 use by the person violating this section, is declared

6 contraband and subject to seizure by, and forfeiture to, the

7 state in the same manner as is provided by law for the

8 seizure and forfeiture of other contraband items.

9 Section 8. (a) The circuit court having jurisdiction

10 for any action arising pursuant to this part may grant

11 injunctions on such terms as it may deem reasonable to

12 prevent or restrain the unauthorized use of an individual's

13 name, photograph, or likeness. As part of such injunction,

14 the court may authorize the confiscation of all unauthorized

15 items and seize all instrumentalities used in connection with

16 the violation of the individual's rights. All

17 instrumentalities seized pursuant to enforcing an injunction

18 under this subsection (a) shall be liquidated and used to

19 satisfy statutory damages, if damages are recovered by the

20 rights holder.

21 (b) At any time while an action under this part is

22 pending, the court may order the impounding, on such terms as

23 it may deem reasonable, o f all materials or any part thereof

24 claimed to have been made or used in violation of the

25 individual's rights, and such court may enjoin the use of all

26 originals, digital copies or images, plates, molds, matrices,

 1 masters, tapes, film negatives, or other a rticles by means of

2 which such materials may be reproduced.

3 (c) As part of a final judgment or decree, the court may

4 order the destruction or other reasonable disposition of all

5 materials found to have been made or used in violation of the

6 individual's rig hts, and of all originals, digital copies or

7 images, plates, molds, matrices, masters, tapes, film

8 negatives, or other articles by means of which such materials

9 may be reproduced.

10 (d)(1) An individual is entitled to recover the actual

11 damages suffered as a result of the knowing use or

12 infringement of such individual's rights and any profits that

13 are attributable to such use or infringement which are not

14 taken into account in computing the actual damages. Profit or

15 lack thereof by the unauthorized use or inf ringement of an

16 individual's rights shall not be a criteria of determining

17 liability.

18 (2) An individual is entitled to recover three (3) times

19 the amount to which the individual is entitled under

20 subdivision (d)(1), plus reasonable attorney fees, if a

21 person knowingly uses or infringes the rights of a member of

22 the armed forces in violation of this part.

23 (e) The remedies provided for in this section are

24 cumulative and shall be in addition to any others provided

25 for by law.
 1 Section 9. (a) It is deemed a fa ir use and no violation

2 of an individual's rights shall be found, for purposes of

3 this part, if the use of a name, photograph, or likeness is

4 in connection with any legitimate news, public affairs, or

5 sports broadcast or account.

6 (b) The use of a name, pho tograph, or likeness in a

7 commercial medium does not constitute a use for purposes of

8 advertising or solicitation solely because the material

9 containing such use is commercially sponsored or contains

10 paid advertising. Rather it shall be a question of fact

11 whether or not the use of the complainant individual's name,

12 photograph, or likeness was so directly connected with the

13 commercial sponsorship or with the paid advertising as to

14 constitute a use for purposes of advertising or solicitation.

15 (c) Nothing in t his section applies to the owners or

16 employees of any medium used for advertising, including, but

17 not limited to, newspapers, magazines, radio and television

18 stations, billboards, and transit ads, who have published or

19 disseminated any advertisement or sol icitation in violation

20 of this part, unless it is established that such owners or

21 employees had knowledge of the unauthorized use of the

22 individual's name, photograph, or likeness as prohibited by

23 this section.

24 Section 10. If a court of competent jurisdic tion

25 adjudges invalid or unconstitutional any clause, sentence,

26 paragraph, section, or part of this a ct, such judgment or

 1 decree shall not affect, impair, invalidate, or nullify the

2 remainder of this a ct, but the effect of the decision shall

3 be confined to the clause, sentence, parag raph, section, or

4 part of this act adjudged to be invalid or unconstitutional.

5 Section 11. All laws or parts of laws w hich are in

6 conflict with this a ct are repealed.

7 Section 12. This act shall become effective immediately

8 upon its passage and approval by the Governor, or upon its

9 otherwise becoming law.

10