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.

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

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.]”

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 1015 / J.L.McVay under a CC BY-NC-ND 2.0 license.