For many years, New York–based celebrities, performers' unions and other advocacy groups have pushed to expand New York's Right of Publicity law so that it covers people after death, and much of the New York–based media has opposed this expansion. Now both houses of the New York State Legislature have passed such a bill, which awaits signature by Gov. Andrew Cuomo. The bill also provides additional protections against the use of "digital replicas" by such means as the use of computer-generated images and includes new protections against so-called revenge porn.
Before turning to the specifics, a few quick things to note. First, right of publicity law is a creature of state statutory and common law. There’s no federal protection for the right. In New York, the right is totally a creature of statute (as codified in Sections 50 and 51 of New York's Civil Rights Law). There’s no common law protection. And New York, unlike many other states, has long resisted extending the right to protect people after they die.
Highlights of Bill
Here are some of the bill's key provisions.
- The bill protects deceased individuals for 40 years after they die.
- While current law provides protection for all living New Yorkers, the new post-mortem right will protect only individuals whose rights of publicity (defined as their "name, voice, signature, photograph or likeness") has commercial value at the time of their death or "because of their death."
- Protection will apply only to individuals who died as New York domiciles and only to such individuals who die at least 180 days after the law becomes effective (that is, there’s no retroactive protection for the Marilyn Monroes of the world).
- Under the existing law, which protects living people, exceptions and limitations on the applicability of the law, including those mandated by the First Amendment, have been left to the courts. The post-mortem protections, however, include a detailed series of explicit exceptions, including, among others, exceptions for newsworthy and educational uses and for "comment, criticism, parody or satire."
- The bill provides that the protected rights can be fully transferred by contract, license, trust, will or other instrument. A system is created by which successors in interest to the deceased individual must register the claimed right with New York's Secretary of State to be able to bring an action for use of the deceased individual’s rights.
- The provisions protecting against the use of digital replicas of deceased performers include a requirement that the use be likely to deceive the public into thinking that it was authorized by the deceased individual or his successors. Other protections for the right of publicity don’t contain any such requirement of deception.
- The protections against the unauthorized depiction of sexuality appears to be limited to acts that the individual didn’t actually perform or which were altered. And the statute of limitations for this type of claim is extended to the later of three years after the original dissemination or one year after discovery by the depicted individual. Violations of the right of publicity (either for living or deceased persons) are governed by a one-year statute of limitations.
There will be a lot more to say about this bill once it’s signed into law. So stay tuned.
Edward H. Rosenthal is chair of the Intellectual Property and Litigation Groups at Frankfurt, Kurnit, Klein & Selz PC https://ipandmedialaw.fkks.com