Louisiana’s Allen Toussaint Legacy Act Heads to Governor’s Desk
June 6, 2022
After several years of trying, the Allen Toussaint Legacy Act has now passed both chambers of the Louisiana legislature and was sent yesterday to the Governor for signature. The Act, SB426, is named after the famed New Orleans musician, songwriter, and producer, Allen Toussaint who died in 2015. The proposed law provides individuals with a “property right of identity.”
If signed into law, the proposed addition to the Louisiana Revised Statutes would provide “every individual” “a property right in connection with the use of that individual’s identity for commercial purposes.” This law provides a cause of action against the “misappropriation of identity” if a use of a person's identity is without consent and for “commercial purpose in Louisiana.” The bill defines “identity” as encompassing a person’s “name, voice, signature, photograph, image, likeness, or digital replica.”
A digital replica is defined as a “computer-generated or electronic reproduction of a professional performer’s likeness or voice that is so realistic as to be indistinguishable from the actual likeness or voice of the professional performer.” Excluded from the definition of digital replicas are the “making or duplication of another recording that consists entirely of an independent fixation of other sounds, even though the sounds imitate or simulate the voice of a professional performer." This exclusion borrows from language in the Copyright Act and is important to limit clashes with copyright law which expressly limits the scope of rights in sound recordings to allow for such sound-alike recordings. See 17 U.S.C. § 114.
Following the lead of New York, which recently adopted a digital replica law, this bill also includes such a right (but here extended to the living) and provides a claim when a digital replica of a person is used in a “public performance of a scripted audiovisual work, or in a live performance of a dramatic work, if the use is intended to create, and creates, the clear impression that the professional performer is actually performing in the role of a fictional character.” This very limited provision tracks some of my suggestions for a digital replica provision which may be appropriate if limited to contexts in which an audience is likely to be confused as to whether the actual person is performing. Such substitutionary performances may also jeopardize the underlying performer’s career.
The statutory identity right is limited to the context of uses for commercial purposes. The term “commercial purposes” is defined in the Act as uses “on or in connection with products, merchandise, goods, services, commercial activities, or performances,” in related “advertising, soliciting, or promotion,” or for the purpose of fundraising.
Only those who are domiciled in Louisiana or that died domiciled there qualify as individuals with the statutorily-provided identity rights. There is a two-year statute of limitation provided for claims accruing under the bill, a helpful clarification often absent in right of publicity statutes. The Act provides a fee-shifting provision that allows the award of fees to the prevailing party at the court’s discretion. Unfortunately, the Act does not include a statutory damages provision which may limit the usefulness of this statute for ordinary people.
The bill categorizes the right to one's identity as a “property right” that is “heritable, licensable, assignable, and transferable.” As I have written elsewhere, such free transferability of a person's right to their own identity is particularly concerning for the living. A transferable right in a person’s name, likeness, and voice sets up a regime in which individuals can lose control over their own identities forever. Parents can assign the rights of their children to third-parties who cannot get them back even when they turn 18, and record labels, movie producers, sports leagues and agents, among many others can pressure young aspiring athletes and performers to assign their rights to them in perpetuity.
For heirs of the deceased, estate taxes on such fully transferable property may force the heirs to commercialize the identities of the deceased even if that violates the wishes of the deceased and their heirs. For more on these concerns see my post and talk on "Who Owns You When You are Dead?"
The bill does at least acknowledge some of my concerns about transferability by precluding property rights in a person’s identity from being “the subject of a security interest, marital property distribution, or debt collection.” Few states have added such a provision and it is a welcome inclusion, but it does not solve the problem of parents transferring children's rights, transfers deemed voluntary, nor of forced postmortem commercialization.
The other major change to Louisiana law that this bill would enact is to create a broad postmortem right of publicity in the state (which currently extends such a right only to deceased soldiers). The new proposed right would survive 50 years after a person’s death. The right does not require that the deceased person have “commercially exploited” their identity during their lifetime. However, the provision does not extend postmortem rights to performances captured in audiovisual works and provides for the termination of the postmortem right if there is no commercial use of a person’s identity for three consecutive years after death.
Although the postmortem provision is retroactive in the sense that it creates rights dating back to those who died less than 50 years ago, it limits causes of action to those that accrue after August 1, 2022. It also exempts any works created before this time, even, it seems, if they are republished or distributed after that date.
The Act provides a number of statutory exceptions to liability that reduce the free speech concerns raised by adding such a right to Louisiana law.
First, the statute suggests that copyright’s fair use defense is not altered by this Act. This provision is somewhat vague, but perhaps intends to suggest that if something is fair use under copyright law, this state right of publicity should not be able to upend such a finding by imposing liability on the otherwise fair use on the basis of the use of a person's identity. This preemptive effect of fair use is something I have suggested be employed to address such possible clashes. (See, e.g., The Right of Publicity: Privacy Reimagined for a Public World (Chapter 8) (Harvard Univ. Press 2018); Copyright Preemption and the Right of Publicity, 36 U.C. Davis L. Rev. 199 (2002)).
A second exemption in the Act is for uses in “connection with a news, public affairs, sports transmission or account, or political campaign.” The Act also exempts “works of political, public interest, educational, or newsworthy value, including comment, criticism, or parody, or similar works, such as documentaries, docudramas, or historical or biographical works, or a representation of an individual as himself or herself, regardless of the degree of fictionalization.” These exemptions likely already cover many works, but just to make certain there are also exemptions for uses in “a play, book, magazine, newspaper, literary work, musical composition, single and original work of art or photograph, or visual work,” and for uses “in a sound recording, audiovisual work, motion picture, or radio or television program, unless the use creates an unauthorized performance.”
The Act also exempts acts of restoration and preservation of sound recordings and audio visual works and advertisements and displays of works listed as exempted from liability. The Act also permits accurate identification of authors and performers appearing in works and exempts incidental uses of a person’s identity.
Notably, however, the merchandising of a person’s identity, even if it arises out of such works appears to be excepted from these exemptions. (See §470.5(C)). This would arise, for example, in the context of action figures derived from successful movie franchises that might use the features of an actor who played the relevant role. (This raises some significant copyright preemption issues as well because it is very difficult to separate out in the minds of the public a character from the actor who plays that character.)
A more novel (and somewhat disappointing) exemption is that data collection, data reporting, and data processing are expressly protected from liability which limits the usefulness of this act to protect data privacy.
To address the issue of whether the statute falls within the Communications Decency Act § 230 (without explicitly saying so) and the question of liability for speech by others, the Act expressly rejects liability under the Act for “publishers or speakers of any information provided by another information content provider.” This side-step around the need to interpret federal law seeks to prevent companies like Facebook from being liable for third-party postings. This concern recently arose in the Hepp v. Facebook litigation in which the Third Circuit allowed such a right of publicity claim for third-party content to proceed against Facebook.
Notably, the Act does not supplant any other laws, so the current Louisiana law providing a right of privacy in the state remains in place.
The Act is likely to be signed by the Governor given its significant speech-protective exemptions and limited scope, as well as its broad support in the legislature and the association with a popular deceased celebrity. Nevertheless, I am disappointed that yet another state has created a transferable right in a person's own identity without addressing the troubling repercussions of doing so.