Updated: July 9, 2021
In New York, individuals generally have the right to control the commercial use of their name, image and likeness, or other similar aspects of their identity. This is referred to as the right of publicity. Not all states recognize this right. While New York has offered some protection in the past, Governor Cuomo signed a bill that went into effect on May 29, 2021, which amended and broadened the scope of protection afforded to individuals under the current right of publicity laws.
OLD NEW YORK LAW
New York Civil Rights Law prohibited a person’s “name, portrait, picture or voice” from being used within New York “for advertising purposes or for the purposes of trade” without the written consent of that person. An individual could bring an action under the law and be awarded both injunctive and monetary relief, as well as punitive damages, in some instances.
However, this law had been criticized because the right of publicity used to not survive death. As a result, advertisers and others had been able to use the name, image or voice of deceased celebrities, leaving the celebrity’s estate and/or family with no recourse. New York’s amended right of publicity statute addresses this.
RIGHT OF PUBLICITY AFTER DEATH
The amended law permits the right of publicity to survive post-mortem in certain instances. Among the limitations is that it only applies to qualified “personalities” and “performers” who die on or after the date the law took effect. Importantly, there is a distinction in the rights afforded to a deceased personality as compared to a deceased performer.
Successors in interest of “deceased personalities” can sue for the unauthorized use of the personality’s likeness for commercial purposes. Deceased personalities are those “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. “Commercial value” is not defined in the statute and may be difficult to prove if the individual is not that well-known. The right of publicity does not last indefinitely. It ends 40 years after the deceased personality’s death. In addition, there are exceptions for uses in literary works, art works, visual works, works of political or public interest and works of educational or newsworthy value.
The rights of “deceased performers” are more limited. A lawsuit can only be brought on behalf of deceased performers for the nonconsensual use of their “digital replica.” A “digital replica” is an “original, computer-generated, electronic performance” in which the deceased performer did not participate but is “so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual.” Deceased performers are limited to actors, singers, dancers and musicians. This right does not expire, unlike the right of publicity for personalities. There are exceptions for remastering or re-coloring a performance by a deceased performer and using the replica as part of a work that constitutes parody, satire, commentary, criticism, news, history, public affairs, sports and other similar programs.
FILING REQUIREMENTS
Before a lawsuit can be filed, the successor in interest must register with the New York Secretary of State. Notably, the successor in interest can only bring one cause of action, even if the unauthorized use is published or distributed multiple times. The suit must be brought within the statute of limitations, which begins to run at the time of the first publication.
PRIVATE ACTION FOR PORNOGRAPHIC DEEPFAKES
New York has also created a private right of action against the dissemination of pornographic “deepfakes.” This occurs when a defendant uses digitization to realistically superimpose an image of a person’s face on someone else’s body in pornographic content, so it appears the individual is engaging in sexual acts. A defendant who knows or reasonably should have known that the individual did not consent to such use can be sued for damages, court costs and attorneys’ fees. The individual does not have to be a “performer” or “personality,” as with the right of publicity in other contexts.
There are a few limited exceptions, such as if an individual gives permission to be depicted in a deepfake video, but consent must be “written in plain language.” There are also exceptions for disclosure by law enforcement as part of their duties or where disclosure is “a matter of legitimate public concern, a work of political or newsworthy value” or if it is a “commentary, criticism or disclosure that is otherwise protected by” New York or U.S. constitutional law.
EXCEPTIONS
There are several exceptions under New York law.
- Commercial Sponsorship/Advertisement. Where the deceased personality’s name, voice, or likeness is used in a way that depicts a sponsorship or contains advertising, such use will not constitute a violation unless the use was “directly connected” with the sponsorship or advertisement. This will probably be a litigated issue as the language of the law is vague.
- Distributor Immunity. Owners or employees of any medium used for advertising, including “newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit advertisements,” are immune from lawsuits for unauthorized commercial uses of a deceased personality’s likeness unless they have “actual knowledge by prior notification of the unauthorized use.”
CONCLUSION
Expansion of the right of publicity in New York will have a significant impact on the activities of advertisers and media organizations and the rights of family members of deceased celebrities. However, there will likely be litigation regarding how and when these new provisions apply. Any party considering the use of deceased personalities or performers should consult an attorney to discuss the amended law before moving forward.
Photo by Tijs van Leur on Unsplash
