New York Post-Mortem Right of Publicity Law Becomes Effective

June 7, 2021 · by ·

New York is now one of a few states, California and Tennessee among them, to have a postmortem right of publicity, as the new section 50-f of New York Civil Right Law became effective on May 29, 2021. The law does not apply retroactively but applies instead only to living individuals and deceased individuals who died on or after May 29, 2021.

The bill (S5959D /A.5605-C) passed the New York Senate unanimously on July 22, 2020, and passed the State Assembly unanimously but for one vote.

The new law protects the rights of publicity of both deceased performers and deceased personalities, for the forty years following their deaths.

Section 50-f-3 states that these rights are property rights, and that they can be freely transferred by contract, license, gift or trust. They are also freely descendible, either by will or, if the person died intestate, following the laws of intestate succession (Section 50-f(5).

Scope of the law

Only natural persons domiciled in the state of New York at the time of their death can be protected. The legal definition of “deceased performer” as someone “who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument” does not call for much comment, but such is not the case for Section 5-f‘s definition of a “deceased personality” as someone:

“whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death, or because of his or her death, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.”

The definition recognizes that one can be famous without being a performer. This is, of course, the case with politicians and other public figures, but has become a trait of our society in love with images. Paris Hilton may have been one of the first persons to be famous for being famous, but many now enjoy fame without being a performer or a public figure. Influencers, for instance, do not perform, yet are famous, at least to their followers, and they use their likeness for the purpose of selling and advertising products.

More gruesomely, the law recognizes that one can become famous for the circumstances of one’s death, may it be as the victim of a crime, a gruesome accident, or because of a heroic act.

The rights of the successors in interest/The Public Registry

The successors in interest may provide notice of such interest through a public registration and posting maintained by the New York Secretary of State. Section 50-f-7(a) uses the word “may” and thus it appears that this formality is not mandatory. This administrative procedure is addressed in 19 NYCRR 13:

  • 131.2 Fee. The fee for filing a registration of a person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof with the Department of State under Civil Rights Law section 50-f is $150.
  • 131.3 Verification by affirmation. (a) The registration form for any person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof may be verified by affirmation under penalty of perjury. (b) In the case of an agent, lawfully appointed, completing a registration form on behalf of a person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof, the agent shall be required to verify by affirmation, under the penalty of perjury, that such agent has been duly appointed to file such registration, knows the contents of such registration, and believes the same to be true.

Digital replicas of deceased performers

Section 50-f(1)(c) addresses the issue of “digital replica”, which it defines as:

“a newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual. A digital replica does not include the electronic reproduction, computer generated or other digital remastering of an expressive sound recording or audiovisual work consisting of an individual’s original or recorded performance, nor the making or duplication of another recording that consists entirely of the independent fixation of other sounds, even if such sounds imitate or simulate the voice of the individual.”

Unauthorized digital replicas of deceased personalities are not within the scope of the law. Kim Kardashian-West recently received for her 40th birthday a hologram of her late father, who was a famous attorney. Ms. Kardashian is a California resident, and so was her father at the time of his death. However, would the family have lived in New York, an authorization to produce the hologram would not have been required under the statute, as an attorney is not a performer.

Section 50-f(2)(b) forbids using without authorization the digital replicas of a deceased performer “in a scripted audiovisual work as a fictional character or for the live performance of a musical work, ” but only “if the use is likely to deceive the public into thinking it was authorized.” Such authorization can be provided either by the performer, while alive, or by a successor in interest.

An unauthorized use is, however, not deceptive “if the person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized …”

Section 50-f(2)(d)(ii) provides an exception to Section 50-f(2)(b) if the digital replica is a satire, a parody or a critique. Works which are newsworthy are also exempt. The statute gives as example of such works documentaries or historical works.

However, this exception does not cover works using the digital replicas of a deceased performer “in a live performance of a musical work.” Having performers take the stage after their death via a hologram is now a lucrative business. One of the first of its kind was presented in 2012 at Coachella when the late Tupac Shakur was seen on stage with Snoop Dogg and Dr. Dre.

 Remedies

As for remedies, the law provides damages to the greater of 2,000 dollars or the compensatory damages suffered by the injured party or parties, who may also claim lost profits stemming from the unauthorized use which were are not taken into account when computing the compensatory damages. The law also provides punitive damages.

First Amendment exceptions

Using a deceased personality’s name, voice, signature, photograph, or likeness without authorization is allowed in literary works such as plays, books, magazines, newspapers, in musical works, visual works, and works “of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; audio or audiovisual work, radio or television program, if it is fictional or nonfictional entertainment,” Section 5-f-2(d)(i). The exception extends to advertising of these works.

Use without authorization of a digital replica of a performer is authorized for parody, satire, commentary, or criticism purposes and in “works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization,” Section 5-f-2(d)(ii). The law also authorizes use without authorization to advertise these works.

If such digital replica represents a deceased performer, as herself or as himself, “regardless of the degree of fictionalization,” the use is also authorized, “except in a live performance of a musical work.” Section 50-f also authorizes de minimis or incidental use without authorization.

Section 50-f(2)(d)(iii) provides that the statute authorizes “use of a name, voice, signature, photograph, or likeness… in connection with any news, public affairs, or sports program… or any political campaign.” This may be interpreted as referring only to deceased performers and personalities, but it could also be interpreted as encompassing digital replicas, as “it shall not be a violation of this section…”appears to refer to the entire section 50-f.

If the use of digital replicas is authorized in “any political campaign,” electoral elections as we know them now may drastically change in the next few years . Digital replicas of politicians are agile vessels to propagate “fake news,” and then-President Trump retweeted last year a “deepfake” of then Presidential candidate Joe Biden.

The New York law does not address “deepfake” use in political campaigns, but addresses sexually explicit deepfakes in the new Section 52-c, which  provides a private right of action “for unlawful dissemination or publication of an intimate image,” including digitized sexual images. Section 52-c will be discussed in a separate post.

 

Image is courtesy of Flickr user Kevin Dooley under a CC BY 2.0 license.

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New York State Still Does Not Recognize Post Mortem Right to Publicity

July 21, 2015 · by ·

A New York Senate bill, S560-2015, introduced in May by State Senator John A. DeFrancisco, would provide a post mortem right of publicity to deceased New Yorkers’ estates for seventy years after their death. The bill explicitly refers to these rights as personal property, which can be freely transferrable or descendable, and thus are more akin to intellectual property rights than privacy rights. The Senate bill is the same as New York House bill A7904-2015 . It would be retroactive and “deemed to have existed at the time of death of any individual who died seventy years prior to the effective date of this [law.]”252919487_b6da302500_z

S550-2015 would introduce an article 3-A to New York civil rights law (NYCRL): the new section 32 of NYCRL would forbid the use in New York, for commercial purposes, of the persona of any deceased individual without first obtaining the written consent of the person or persons owning more than fifty percent of the deceased person’s publicity rights. Even though the justification of the bill notes that the “bill provides for a “right of publicity” for deceased personalities,” (my emphasis) the bill only mentions “deceased individuals,” defined as “any natural person who died a domiciliary of the State of New York on or after, or within seventy years prior to the effective date of [the law.]” and so it seems that everybody, famous or unknown, would benefit from this right.

Bill Drafted to Respect First Amendment

However, no consent would be required if the use is not an “advertisement, endorsement or solicitation for the sale of purchase of a product, article or merchandise, good or service, other than for the work itself and the work does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment of the United States Constitution or New York State Constitution” (Section 34).

The bill lists uses protected by the First Amendment. They are: “a play, book, graphic novel or other literary or theatrical work; a work of political or newsworthy value concerning public interest, including a television broadcast or an article, editorial or commentary in a magazine, newspaper, newsletter or other periodical; an original musical composition, musical sound recording or other similar musical work; or an original work of fine art or a work of fine art reproduction.”

A “work of fine art” is broadly defined by Section 30-5 as “a visual rendition including, but not limited to, a painting, drawing, sculpture, mosaic, videotape or photograph; a work of calligraphy; a work of graphic art including, but not limited to, an etching, lithograph, serigraph, or offset print; a craft work in materials including, but not limited to, clay, textile, fiber, wood, metal, plastic or glass; or a work of mixed media including, but not limited to, a collage, assemblage, or work consisting of any combination of [work of fine arts as defined in Section 305]”.

Therefore, artists would be authorized to use the likeness of a deceased personality to create new works, and the list of what would be considered to be fine art is an open one. The bill uses the soon to be archaic “videotape” word, which could, however, be interpreted as encompassing digital videos and probably even holograms. Reviving dead celebrities by holograms is becoming a lucrative commercial venture, but artists could also create holograms of deceased celebrities.

A Broad (Overbroad?) Definition of Persona

The bill defines “persona” as “the name, portrait, picture, voice, signature, photograph, image, likeness or distinctive appearance, gesture, mannerisms or other indicia of a deceased individual” (Section 30-4). This definition of persona is broader than the current definition by NYCR §50 of what is protected by New York right to publicity, that is, an individual’s name, portrait or picture. Readers of the IPKat blog may remember that Lindsay Lohan tried last year to convince a New York court that a video game had infringed her rights to publicity when depicting a blonde woman making the “V” sign, as Ms. Lohan is sweet on doing. But this pose is favored by many teenagers and teenagers alike when taking selfies. Would such a pose be considered a “mannerism an “indicia” protected by the post mortem right to publicity?

No Moral Rights

The bill does not provide any moral right, and this is not surprising as the U.S recognizes only very limited moral rights. Not providing moral rights is, of course, protective of freedom of expression, yet may lead to tensions and possibly lawsuits if a use, otherwise authorized by the new law, would be considered by the right holders as tainting the memory of the deceased. Such tainted use could be pornographic or presenting ideas which were repulsive to the celebrity during her lifetime. However, such uses would likely to be found protected by the First Amendment, unless commercial.

As the New York Senate has concluded its business for its 2015 regular session, this bill will not be enacted this year. It is not the first time that a New York bill providing for a post mortem right to publicity has failed to be enacted, but as some celebrities are now earning millions of dollars years after their demise, New York is likely to eventually join California and other the states which already have post mortem right to publicity statutes. Let’s wait and see what 2016 will bring in Albany.

Image is courtesy of Flickr user Jan Tik under a CC BY 2.0 license.

This post was originally published on The 1709 Blog.

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Post Mortem Right of Publicity, in Massachusetts and Arizona

July 25, 2014 · by ·

7002656448_578cca95fc_zHere is my short article about the Massachusetts right of publicity bill published this week by the Transatlantic Technology Law Forum Newsletter.

The bill is S.2022, An Act protecting the commercial value of artists, entertainers and other notable personalities. The Act would give celebrities a post mortem right of publicity. Right of publicity is the right which protects an individual against unauthorized use of his or her identity for commercial purposes.

Some states, such as California, have statutory laws recognizing that this right survives the death of the individual. The Massachusetts law would, however, provide such post mortem right only to celebrities. Other states recognize a post mortem right of publicity at common law. For example, the Arizona Court of Appeals recognized last April a post mortem right of publicity for everyone, famous or not famous In the Matter of the Estate of Lois Catherine Reynolds (Ariz. Ct. App. April 24, 2014).

In this case, a brother and sister wanted to prohibit their sister Robin to use two photographs of their mother, Lois, who died in 2010, to illustrate two posts about Lois on her blog. They sued Robin, claiming that, by posting the photographs of their mother, Robin had violated the right of publicity of their mother. The trial court dismissed their case, but the Court of Appeal held that Arizona recognizes a post mortem right of publicity. The Court of Appeals explained further that this right is “descendible, and a claim for violation of the right survives the death of the holder. It is not limited to celebrities and it need not be exploited during life to be asserted in death.” The Court of Appeal concluded, however, that  Robin had not violated her mother’s the right of publicity “because [the blog posts] are expressive works that do not employ [the mother]’s name or likeness for purposes of trade.”

New York does not recognize post mortem right of publicity. As I wrote on the EASL blog a few years ago, the S.D.N.Y. ruled in 2007 that Marilyn Monroe could not have passed any postmortem right of publicity through the residuary clause in her will, because she did not own any post mortem right of publicity at the time of her death in 1962, Shaw Family Archives Ltd v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y. 2007). This decision led to the introduction of a bill, A08836 to amend New York Civil Rights Law §§ 50, 51. It would have provided a postmortem right of publicity to personalities, but was never enacted.

Image is Street Party – 142 High Street – Street, Somerset courtesy of Flickr user Elliott Brown, under a CC BY 2.0 license.

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