NEW DESCENDIBLE RIGHT OF PUBLICITY IN NEW YORK AND MORE

Signed into law yesterday (S5959D /A.5605-C). Only about a dozen states recognize that the right of publicity survives death and in the past, I had utilized the California law to protect the use of images of deceased celebrities when distributors were utilizing their images in the sale of public domain materials.

The new law also prohibits the use of "deepfake" pornography.

"SUMMARY OF PROVISIONS:

Section 1 adds a new Civil Rights Law § 50-f, creating the right of

publicity.

Section 2 adds a new Civil Rights Law § 52-c, creating a private right

of action for unlawful dissemination or publication of a sexually

explicit depiction of an individual.

Section 3 provides the effective date.

 

JUSTIFICATION:

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 public-

ity to individuals either through 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, portrait or picture, voice or signature, each a part

of an individual's persona. The Right of Publicity also protects a

deceased performer's digital replica in expressive works to protect

against persons or corporations from misappropriating a professional

performance.

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 post-

ing 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.  In conclusion, this bill is

balanced in protecting essential first amendment rights consistent with

current law while maintaining the current status of the right of privacy

law and still providing protections for an individual's right of public-

ity, whether they are a child or an adult, for forty years after death.

This bill also establishes protections for victims of nonconsensual

digitally manipulated sexually explicit material, such as deepfake

pornography.

 

LEGISLATIVE HISTORY:

Similar to S5857 of 2017 - died on calendar, and S5857B of 2018 -

referred to judiciary with no further action

 

EFFECTIVE DATE:

This act shall take effect on the one hundred eightieth day after it

shall have become a law, and shall apply to all living individuals and

deceased individuals who died on or after such date."