Tuesday, June 27, 2017

NEW YORK V. CALIFORNIA (AND OTHER STATES) - DECEASED RIGHT OF PUBLICITY (CONTINUED PART 1)



S.6857-A / A.8155-A was proposed this year to amend the civil rights law, in relation to the right of publicity and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity.

According to the bill's sponsors:

"The term "Right of Publicity" originated in the United States Court of Appeals for the Second Circuit in 1953 in Haelan Laboratories v. Topps Chewing Gum to describe the right of individuals to control the use of their name and likenesses for commercial and other valuable purposes. Since then, more than half of the states have granted rights of publicity to individuals through either the common law or by statute.

The Right of Publicity refers to every individual's inherent right to control the commercial use of his or her personal characteristics, which can include name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms. The most critical function of the Right of Publicity is control. The Right of Publicity, even though it is a property right, is not merely a property asset, like a painting or real estate, for estate tax purposes. The Right of Publicity ensures that if a person, or that person's successor in interest, does not seek to commercialize the right, they are not compelled to do so.

This bill provides for a post mortem right of publicity for forty years after the death of an individual, allowing successors in interest to provide notice of such interest through a public registration and posting maintained by the New York Secretary of State. Along with providing for a post mortem right of publicity the bill also has exclusions consistent with constitutionally protected freedom of speech.

Finally, the Right of Publicity created through this legislation applies to acts that occur within New York State regardless of the deceased individual's domicile, residence, or citizenship. This way we are able to prevent anomalous results in the application of the law to individuals who do not have a Right of Publicity in their domicile or country.

In conclusion, this bill is balanced in protecting essential first amendment rights consistent with current law while still providing protections for an individual's right of publicity during life and for forty years after death."

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