New York Legislature Feels the Heat and Pulls Right of Publicity Bill

By Jennifer E. Rothman
June 22, 2017

Feeling the heat from many different sides, the New York legislature today smartly pulled the seriously flawed right of publicity bill (with the SAG-AFTRA provision that undermined the statutory speech protections).  As Professors Christopher Sprigman, Christopher Buccafusco, and I wrote in an editorial in the Albany Times-Union, the proposed bills posed a serious threat to free speech and the production of creative works both within and outside of New York state. And as my more detailed letter to the legislature points out, the bills had a host of other flaws that undermine even the stated mission of protecting individuals, particularly performers. 

The advertisement placed in the local Albany paper listing massive opposition also helped shut this down in its tracks. In addition to many leading law professors going on the record opposing the Assembly and Senate versions of the bill, the opposition brought together the unlikely coalition of the Electronic Frontier Foundation, and the Motion Picture Association of America (MPAA).  Other prominent opponents of the bill include The Authors Guild, New York Civil Liberties Union, Getty Images, Association of American Publishers, and the Media Law Resource Center.

A new bill is likely to be drafted over the summer and fall, hopefully with more input and substantial revisions.  Although I do not think New York law needs revising, the pressure to add a post-mortem provision and to address concerns over reanimating actors will likely encourage something to proceed next session.  It is important that when such drafting takes place that more than just SAG-AFTRA and the MPAA are in the room. The public has a significant interest in limiting the right of publicity, as well as in it providing protections for individuals. 

The MPAA, authors and publishers may be happy with an exception for books and movies, but greater speech protections are necessary.  They also may not be particularly concerned about the transferability of the rights, but it is crucial that any legislation not undermine the protections it seeks to provide by creating a right that can be transferred to third-parties and corporations.

In addition, revisions should not undo the current privacy laws in the process which are longstanding and have more than 100-years of precedents that shape and guide current law.  New York should consider a much narrower law solely focused on adding post-mortem rights and to address the reanimation issue.  In doing so, they would do well to reflect on why exactly a post-mortem right is needed, and limit it to an appropriate duration to protect the interests of surivors rather than to grant a windfall to often estranged distant relatives.