Tuesday 11 July 2017

New York State Fails to Extend the Scope of its Right of Publicity Statute

New York State has a statutory right to publicity, New York Civil Rights Law §§ 50 and 51. It protects the right of publicity of a “person, firm or corporation” in order to prevent “uses for advertising purposes, or for the purposes of trade” of the “the name, portrait or picture of any living person without having first obtained the written consent of such person.

The New York legislature recently tried to expand this right, but this attempt was so far unsuccessful, and the legislature is now in recess.

Assembly Bill A08155, introduced on May 31, 2017, proposed to establish a right of publicity for both living and deceased individuals. It also proposed that an individual's name, voice, signature and likeness would be a freely transferable and descendible personal property, making the right of publicity a property right more than a privacy right, as it is now.
If one of our readers know Japanese, please let us know what it says!
An expansion of the scope of the law

Readers of the blog may remember that Lindsay Lohan claimed that flashing the V sign was part of her persona and was thus protected by New York right of publicity law. She was unsuccessful as the scope of New York’s right of publicity law is narrow.

The bill would have considerably expanded the scope of the law, as it would have also have protected the “likeness” of an individual, which it defined as “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual's face or body, and includes a characteristic.”

The bill defined the “characteristic" of an individual as “a distinctive appearance, gesture or manner.” So, Lindsay Lohan’s V sign could arguably be protected would the bill been enacted.

The geographic scope of the statute would also have been considerably extended. The bill would have protected the right of publicity of a deceased individual, for forty years after the death of the individual, and this, “regardless of whether the law of the domicile, residence or citizenship of the individual at the time of death or otherwise recognizes a similar or identical property right.” This could be interpreted as meaning that the law would have applied to virtually anyone in the world…

A right of publicity transferable and descendible

The bill considered the likeness to be personal property, freely transferable:

A living or deceased individual's name, voice, signature and likeness, individually and collectively known as his or her right of publicity, is personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument…”

If an individual would have transferred his right of publicity, there could have been a risk of losing control over the use of one’s likeness, even for unsavory use, unless the contract transferring such rights would have been carefully written to protect the individual against such occurrence. One can imagine that a young, talented and beautiful, but nevertheless impecunious individual could have signed up his right of publicity in exchange for money badly needed at the time.  

New York State, unlike California, does not recognize that deceased individuals have a right to publicity and the bill would have provided such right. The bill detailed at length how such right would have vested to the heirs, whether by will or, in the absence of a will, under the laws of intestate succession. The bill also specified that the rights thus inherited could have been “freely transferable or descendible by any subsequent owner of the deceased individual's right to publicity…”

The right of publicity would have terminated at the death of the individual who would not have transferred it by contract, license, gift, trust or by will, and if he had no heirs who could have inherited it under the laws of intestate succession.

Such rights would not have “render[d] invalid or unenforceable any contract entered into by a deceased individual during his or her lifetime by which the deceased individual assigned the rights, in whole or in part, to use his or her right of publicity…”

First Amendment defense

The bill would have provided a First Amendment defense. It would not have been necessary to secure the consent of the individual for using her right of publicity if such right would have been

used in connection with… news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign;… a play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work;… a work of political, public interest or newsworthy value including a comment, criticism, parody, satire or a transformative creation of a work of authorship; or an advertisement or commercial announcement for any [news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign].

These exceptions are quite broad, and so, while the bill expanded the scope of the New York right of publicity, it also expanded the scope of the exceptions to this right.

The Authors Guild expressed its “grave concerns” about the bill, in a letter to three members of the New York legislature, as it “has the potential to cause great harm to our society’s knowledge-base and to stifle speech,” as it would make it difficult for authors “to write without restraint about public figures,” who may threaten to file a right of publicity suit to stifle speech critical of them.
A well-managed right of publicity is a golden egg
The law is not clear enough

A work thus exempted “that includes a commercial use and replicates the professional performance or activities rendered by an individual” would not have been exempt “where the replication is inextricably intertwined with the right of publicity of such individual,” subject, however, to the First Amendment and section eight of article one of the New York state constitution protecting freedom of expression. What does “inextricably intertwined” mean? Your guess is as good as mine…

Owners or employees of any medium used for advertising which would have published or disseminated an individual's right of publicity would not have been liable unless established that “they knew the unauthorized use was prohibited by [the New York statutory right of publicity]. Would owners and employees only benefited from this immunity if they did not know the use to be unauthorized and that such unauthorized use was prohibited by law, or would the knowledge that the use was unauthorized been enough? It is difficult to say.

Let’s hope that the bill will be written again in a more precise way, and that its scope will be narrowed. We’ll keep you posted.

Image of Japanese building courtesy of Flickr user antjeverena under a CC BY-SA 2.0 license.
Image of eggs is courtesy of Flickr user Karen Roe under a  CC BY 2.0 license.


Unknown said...

Randomly, the japanese in the photo says "Brand King Royal".

Joshua Graubart said...

The Japanese sign is for a discount luxury-brand store in Tokyo. The sign reads "burando o roiaru" or "Brand King Royal." Much more than Lohan's "v-sign" - which, coincidentally, is as common a feature of Japanese snapshot poses as smiles are in the West - founder Morita Tsutomu's outrageous pompadour probably would qualify as a unique "characteristic."

More on Morita and Brand King Royal at http://www.japantimes.co.jp/life/2007/07/15/to-be-sorted/bulbous-hair-gives-brand-king-a-head-start/#.WWZMeoTyvIU

Marie-Andree Weiss said...

Thank you so much for the translation, Unknown and Joshua!
Joshua, thank you for the additional comment and link, much appreciated! So, there is a link with Elvis... I was not sure.