By Barry Werbin
This and other blogs by Barry can be found at Herrick, Feinstein LLP's website at https://www.herrick.com/publications/new-york-enacts-new-post-mortem-publicity-rights-law-with-significant-implications-for-commercial-advertising-and-marketing-uses/
A sea-change in NY's privacy/publicity rights law went into effect on November 30, 2020, when Gov. Cuomo signed legislation establishing a new Civil Rights Law Section 50-f (S5959D /A.5605-C), which for the first time grants a 40-year post-mortem right of publicity for deceased "performers" and "personalities" (as defined below) to protect against unauthorized commercial exploitation of specific attributes of their persona. NY's pre-existing limited right of publicity (Civil Rights Law Sections 50 and 51), which remains in place, applies only to use of a living individual's name, portrait, picture or voice for purposes of advertising or trade (such unauthorized uses of a person's name, portrait or picture is also a misdemeanor under Section 50).
As with the current law, there is a private right of action for damages and injunctive relief arising from acts occurring directly in NY that are related to the unauthorized use of the protected persona of a deceased performer or personality "on or in products, merchandise, goods, or services, or the advertising or selling, or soliciting purchases of, products, merchandise, goods, or services" that are prohibited by the statute.
The new law further places restrictions on using technology to create digital reproductions of persons. This expanded right of publicity protects a deceased performer's digital replica in expressive works to prevent third parties from misappropriating such professional performances without consent.
Under the new law, successors in interest to deceased individuals can enforce such post-mortem rights, provided they first give notice of such interest through a public registration database, which will be maintained by the NY Secretary of State. The law includes usage exceptions consistent with constitutionally protected freedom of speech.
The law becomes effective on or about May 28, 2021 (180 days after it became law on November 30, 2020), and applies to all living and deceased individuals who die on or after that date. Remedies include the greater of compensatory damages or statutory damages of $2,000 per violation of the post-mortem and digital replica sections of the statute, plus any profits from the unauthorized use that are not taken into account in awarding compensatory damages. Punitive damages are also available.
There are a wide variety of exempt uses, consistent with First Amendment rights, depending on whether the deceased person is defined as a "deceased performer" or a "deceased personality," as further explained below. Exempt uses generally include plays; books and other literary works; magazines and newspapers; musical works; works of art and other visual works; works of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization; audio and audiovisual works, radio and television programs, if they are fictional or nonfictional entertainment; news, public affairs and sports programming; and advertisements for any of the foregoing types of works.
Owners and employees of any medium used for advertising are also exempt, provided they do not have actual knowledge by prior notice of an unauthorized use of a deceased performer's digital replica or deceased personality's name, voice, signature, photograph, or likeness. Protections afforded interactive computer service providers under Section 230 of the federal Communications Decency Act, however, expressly remain unaffected.
Unless covered by an exempt category, entertainment, sports, media, marketing and advertising enterprises, and online platforms, will now need to undertake specific due diligence before using any of the delineated persona of deceased performers and personalities for specified commercial advertising and marketing purposes.
For over 100 years, NY's publicity rights law only applied to living persons. Originally enacted in 1903, the long-existing law covers use of a living person's name, portrait, picture or voice for advertising or purposes of trade, which remains unchanged under the new law, thus leaving in place decades of established court precedent interpreting that legacy statute. Before the new law, anyone was free to use a deceased New Yorker's persona for commercial purposes without restriction. Various other states grant post-mortem publicity rights, such as California (70 years after death) and Elvis' home state of Tennessee (where such rights can extend indefinitely as long as the deceased person's persona continues to be exploited).
The new law expands the categories of a deceased individual's persona to include "name, voice, signature, photograph, or likeness, in any manner." It also defines two distinct protected groups: "Deceased Performer" and "Deceased Personality." "A deceased performer" is a person who dies while domiciled in New York and who, for livelihood, was "regularly engaged in acting, singing, dancing, or playing a musical instrument." "A deceased personality" is a person who dies while domiciled in New York and whose "name, voice, signature, photograph, or likeness" had commercial value "at the time of his or her death, or because of his or her death," regardless of whether that person during their lifetime "used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services."
The law also provides a new definition of a "digital replica," covering any newly-created computer-generated, electronic performance by an individual that is then used in a new audiovisual work or sound recording "in which the individual did not actually perform," such that "a reasonable observer would believe it is a performance by the individual being portrayed and no other individual."
Any use of a deceased personality's defined persona "on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services" without consent from that person or their authorized representatives, is a violation of the statute that gives rise to a claim for damages. The use of a deceased performer's digital replica in an audiovisual work as a fictional character, or for the live performance of a musical work, without permission, also gives rise to a claim for damages if the use is likely to deceive the public into thinking such use was authorized by the deceased person. However, liability can be avoided if the user posts a "conspicuous disclaimer" in the credits of the audiovisual work and in any related advertisements where the digital replica appears, stating that use of the replica has not been authorized by the depicted deceased person.
These publicity rights are now deemed property rights, which are made freely transferable and descendible, in whole or in part, by contract, license, gift, trust, or other testamentary instrument. These rights can also be exercised by subsequent owners of such rights. It will be important for estate planning purposes for celebrities and performers to carefully plan for succession rights. Such rights can also be transferred prior to death to a separate entity that can be managed by those trusted by the individual personality. Persons dying intestate will have their publicity rights inherited by one or more persons who own 51% or more of the deceased individual's rights under the law. Successors must register in the new database in order to enforce these rights.
The law also adds a new Civil Rights Law Section 52-c, which imposes penalties for publishing sexually explicit depictions of individuals, to protect against "revenge porn" and "deep fakes." "Depicted individuals" include persons who appear, through digitization, to give a performance they did not actually perform or to be performing in a performance that is digitally modified. "Digitization" means realistically depicting nude body parts of another person as the body parts of the subject person, using computer-generated nude body parts as the parts of the subject person, or depicting an individual engaging in sexual acts in which that person did not actually engage. An offended person has a private right of action to enforce his or her rights against any other person who discloses, disseminates or publishes sexually explicit material related to the depicted individual and who knows or reasonably should have known that the depicted individual did not consent to such use. Remedies include compensatory and punitive damages, injunctive relief, attorneys' fees and court costs. A defense of consent is only valid if there is a written agreement in plain language that includes a general description of the sexually explicit content. While First Amendment protections are included for matters of legitimate public interest and news reporting, sexually explicit material shall not be considered "newsworthy" merely because the depicted individual is a public figure.