By Judith B. Bass Member, EASL Executive Committee Member, NYSBA Media Law Committee Thanks to the members of the New York State Bar Association Committee on Media Law subgroup under the leadership of Sandra Baron and Daniel Kummer who had a role in reviewing and commenting on the legislation.
Both houses of the New York State Legislature have now passed a bill establishing a right of publicity in New York for the first time. The bill also provides for a private right of action for unlawful dissemination of sexually explicit depictions of individuals. A copy of the final bill, S. 5959, is attached here: NewYorkFinalRightOfPublicityBillS5959D (1).pdf. The vote was unanimous in the New York State Senate (60-0) and almost unanimous in the New York State Assembly (140-1). The legislation has been sent to the Governor for signature. The passage of this bill follows several years of legislative sessions when an earlier (and potentially more problematic) version of the bill failed to pass or come up for a vote. There were also a number of ongoing prior efforts to have New York join the list of states that recognize a deceased person's right of publicity in some fashion.
The bill provides for a new Section 50-f to be added to the New York Civil Rights Law entitled "Right of publicity." It applies to deceased persons domiciled in New York State at the time of death. Violations of Section 50-f are compensable by damages equal to the greater of $2,000 or the amount of compensatory damages suffered by the injured party, plus profits attributable to such use, and punitive damages. It is to take effect 180 days after it is signed into law, and apply to deceased individuals who die on or after that date.
The bill deals with two categories of deceased persons: "deceased personalities" and "deceased performers."
Right of Action for Deceased Personalities
Under Section 50-f (2)(a), the bill provides for a right of action on behalf of "deceased personalities" for the use of their names, voices, signatures, photographs or likenesses for commercial purposes without consent, i.e., on or in products, merchandise or goods, or for purposes of advertising those goods. A "deceased personality" is defined as a person "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..." The right of action extends for 40 years after the death of the deceased personality. Persons claiming to represent the rights of a deceased personality are required to register with the New York Secretary of State before any claim can be made.
Importantly, the bill provides for a number of exceptions to the prohibited uses. Pursuant to Section 50-f (2) (d) (i), it is not a violation if the use of a deceased personality's name, voice, signature, photograph or likeness is in a play, book, magazine, newspaper or other literary work, a musical work, art work or other visual work (like photography), or in a work of political, public interest, educational or newsworthy value, including for purposes of comment, criticism, parody or satire, or in an audio or audiovisual work that is fictional or nonfictional entertainment (or an advertisement or commercial announcement of any of the foregoing.) Deceased Performers' Digital Replica Right
Under Section 50-f (2) (b), the bill provides for damages for the use of a "deceased performer's digital replica" in a "scripted audiovisual work as a fictional character" or in the "live performance of a musical work" without consent when the use "is likely to deceive the public into thinking it was authorized." A "deceased performer" is defined as a person who "for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument." A "digital replica" is defined as a computer-generated, electronic performance in which the person did not actually perform "that is so realistic that a reasonable observer would believe it is a performance by the individual." The use will not be considered "likely to deceive" if there is a conspicuous disclaimer provided in the credits of the scripted audiovisual work and any related advertisement saying it has not been authorized. A "digital replica" does not include remastering or reproduction of a sound recording or other audiovisual work.
There are strong exceptions to this section as well. Under Section 50-f (2) (d) (ii), it is not a violation if the work is a parody, satire, commentary, criticism, or a work of political or newsworthy value, including a documentary, docudrama, historical or biographical work "regardless of the degree of fictionalization" -- except in a live performance of a musical work. In Section 50-f (2) (d) (iii), it also specifically provides that it is not a violation if the use of the name or likeness is in connection with a news, public affairs or sports program, or in any political campaign.
Right of Action for Dissemination of Sexually Explicit Depictions
A separate Section 52-c has also been added to the law providing for a private right of action for unlawful "dissemination or publication of a sexually explicit depiction of an individual." This section addresses the troubling practice of works known as "deepfakes" being distributed without approval of performers. It applies to a "depicted individual" who, through digitization, appears to be giving a performance he/she/they did not actually perform or whose actual performance was subsequently altered in violation of the section. "Digitization" includes realistically depicting nude body parts of another human being or computer-generated nude body parts as those of the depicted individual, or making it appear that the depicted individual is engaging in sexual conduct in which he/she/they did not engage. The depicted individual has a cause of action against whomever distributed such a depiction unless the depicted individual has signed an agreement consenting to the disclosure of such depiction; a disclaimer is not sufficient. Damages for dissemination of sexually explicit material include injunctive relief, compensatory and punitive damages, and attorney's fees.
Significantly, under Section 52-c (4)(a), there is no liability for disclosure or dissemination of sexually explicit material if such disclosure is (i) in the course of reporting unlawful activity, exercising law enforcement duties, or in hearings, trials or other legal proceedings; or (ii) the material is a "matter of legitimate public concern, a work of political or newsworthy value, or commentary, criticism" or otherwise protected constitutionally, provided that such material is not newsworthy "solely because the depicted individual is a public figure."
Commentary
On its website, SAG-AFTRA praised the passing of the bill as a "milestone in the union's continued efforts to protect performers against digital image and voice exploitation." It also stated that, in prohibiting the use of a deceased individual's voice and image in advertising and trade, a "glaring oversight in right of publicity jurisprudence has finally been fixed thanks to the work of our members in New York." https://www.sagaftra.org/strengthening-safeguards-against-digital-image-exploitation-and-abuse.
Professor Jennifer E. Rothman, a leading expert on the right of publicity, commented shortly before passage of the legislation as follows: "A welcome improvement over the prior few iterations of this proposed legislation, this bill leaves intact current Civil Rights Law Sections 50 and 51 (https://www.rightofpublicityroadmap.com/law/new-york) which have been protecting the right of publicity for the living in New York since 1903. This means that the law will stay as it currently is for the living and will not upset more than 100 years of established legal precedents and jurisprudence." https://www.rightofpublicityroadmap.com/news-commentary/new-york-reintroduces-much-improved-postmortem-right-publicity-bill
Professor Rothman also stated that "[n]o effort has been made to justify exactly why a forty-year postmortem period is needed in New York for deceased celebrities...But given the much more thoughtful and targeted approach of this postmortem provision and its capacious exceptions, the harm to free expression is likely to be fairly minimal--especially if it is made prospective." https://www.rightofpublicityroadmap.com/news-commentary/new-york-reintroduces-much-improved-postmortem-right-publicity-bill