New York Reintroduces Much Improved Postmortem Right of Publicity Bill
July 14, 2020
During its usual off-season, the New York legislature is revisiting its multi-year efforts to add new sections to its civil rights law and in particular to add a postmortem provision to state law. This latest version would add two sections to NY's Civil Rights Law, what it dubs a new “right of publicity” and a provision addressing the “unlawful dissemination or publication of a sexually explicit depictions." The bill—Assembly Bill A10800—was (re)introduced on July 10th, and has been referred to the Committee on the Judiciary. It is likely to be taken up shortly after the legislature meets on July 20th. (Update, July 17, 2020: I note that this is very similar to a Senate version of the bill, S05959C, that was amended in March and then held because of COVID, it is currently being considered by Finance Committee. The two bills are likely to be reconciled in some way if they proceed)
It is clear from the outset that the primary purpose of the bill is to add a postmortem provision to New York law, one that would extend rights for forty (40) years after a person’s death. The bill also would address concerns over the use of digital replicas of deceased individuals.
The bill also will protect people from the circulation of nonconsensual intimate images, including simulated performances. It is a good idea to have a law against nonconsensual circulation of explicit images, but the combination of these two very different sections in a single bill seems at least potentially like a strategic move to pressure passage of the postmortem provision that has been introduced for many years now without success. I don't doubt the sincerity of efforts to add such protections to New York law but the bill's primary purpose appears to focus on providing a potential boon to the heirs of a small group of commercially valuable celebrities. The stated purpose of the bill does not even mention protection against the circulation of “sexually explicit images,” nor does the discussion of the justifications behind the bill in the memorandum that was forwarded to the committee. Perhaps this was an oversight, in which case it should be fixed. Lots of bills, of course, are results of various compromises and strategies to achieve passage, so the simple mash-up of these different interests isn't itself a deal breaker. But is worth noting.
So focusing on the specifics of this proposed bill, let's begin with the big picture--this is a major improvement over prior versions. (See, for example, my thoughts on last year’s efforts.)
Leaves in Place Current Right of Publicity and Privacy for the Living
A welcome improvement over the prior few iterations of this proposed legislation, this bill leaves intact current Civil Rights Law Sections 50 and 51which 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. (I note that the memorandum circulated with the draft bill erroneously contends that the right of publicity was coined and created in the 1953 decision in Haelan Labs. v. Topps, something that I have debunked in my book, and various articles.) Notably, the companion memorandum refers solely to a right of control as justifying the proposed postmortem right; however, deceased individuals have no such right of control (because they are dead!), and even the living have a limited right of control over how others use their identities. See Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, forthcoming in the Yale Law Journal (discussing the different branches of the right of publicity, including a right of control). What this law would do is extend what we call a "right of commercial value" to heirs of deceased personalities (and potentially a postmortem performance right).
Postmortem Provision for Deceased Personalities
In particular, the bill would create a new cause of action (Section 50-f) for forty years after death when a “deceased personality’s name, voice, signature, photograph, or likeness” is used “on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases” of such items. A deceased personality, is limited to someone who died domiciled in New York, and includes anyone 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.” This largely tracks language from California’s postmortem provision.
Digital Replica Right for Deceased Performers
The bill also would prohibit the use of a “deceased performer’s digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work . . . if the use is likely to deceive the public into thinking it was authorized by the person” or her heirs (as specified in the bill). Notably, this provision expressly states that a “conspicuous disclaimer in the credits” and in related advertisements stating that the use is not authorized will insulate users from liability. This disclaimer provision likely negates much of the teeth of the provision. Nevertheless, the requirement of likely deception is a good choice and a big improvement over prior versions of this bill. It also makes it possible that the provision could survive constitutional review.
The definition of a “deceased performer” limits such individuals to those who died domiciled in New York. The requirement of being domiciled in New York is an important improvement from prior iterations of this legislation, but the definition of deceased performer remains vague. The term sweeps up those who “for gain or livelihood” were “regularly engaged in acting, singing, dancing, or playing a musical instrument.” That is a pretty sweeping definition. Does that include high school students in the drama club? A subway busker? A violin-playing ER doctor who serenades her patients? Notably, athletes—even if famous ones, like Alex Rodriguez―don’t fall under this provision, at least not by virtue of their athletic feats. This definition seems both over and underinclusive.
The bill defines a “digital replica” as a “newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual.” The provision smartly exempts remastering and reproduction of preexisting works.
Statutory Damages, Express Exemptions, and Registration Requirement
The bill establishes statutory damages in the amount of $2,000 for violations of the postmortem and digital replica provisions.
The express exemptions have been meaningfully expanded from prior versions of the bill. Proposed subsection 50-f(2)(d)(i) would exempt from liability uses of deceased personalities in plays, books, magazines, newspapers, other literary works, musical works, works of art or visual works, works of “political, public interest, educational or newsworthy value, including comment criticism, parody or satire, audio or audio visual work, radio or television program, if it is fictional or nonfictional entertainment,” and advertisements for those items. Notably absent from the express list are video games and motion pictures. They are likely to be included in the exemption of audiovisual works but given the strange treatment of some video games, if I worked in the gaming industry, I’d prefer an explicit enumeration. A later provision in the bill limits the use of a person’s identity in merchandise related to these exempted items. So movie action figures might require consent from a person’s estate, but mere depiction of a character based on them would not.
Subsection 50-f(2)(d)(ii) would exempt from liability uses of deceased performers’ digital replicas if the use is considered to be a “parody, satire, commentary, or criticism; works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization; a representation of a deceased performer as himself or herself . . . except in a live performance or musical work; de minimis or incidental;” or in advertisements for such works.
The bill also would exempt uses that are “in connection with any news, public affairs, or sports program or account” or “any political campaign.”
The bill would make the rights under the provision “freely transferable or descendible” property. In contrast to prior versions of this bill, the transferability would not extend to the rights of the living, which makes this bill orders of magnitude more palatable than prior versions that would have made rights for the living transferable.
Notably, claims to a deceased person’s identity require registration with the secretary of state.
No effort has been made to justify exactly why a forty-year postmortem period is needed in New York for deceased celebrities. Nor has any effort been made to address the likely tax implications of this new property of celebrity estates that might cause forced commodification of deceased loved ones to pay off huge tax bills. I have raised some of these questions elsewhere—in a talk at the Smithsonian on Who Owns You When You are Dead?, and in an op-ed on The Market in Dead People.
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.
Right of Action against Nonconsensual Circulation of Sexually Explicit Material
Finally, the bill provides a “private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual.” This proposed Civil Rights Law § 52-c provides a private right of action to a “depicted individual” against a “person who, discloses, disseminates or publishes sexually explicit material related to the depicted individual, and the person knows or reasonably should have known the depicted individual in the material did not consent to its creation, disclosure, dissemination or publication.”
The provision requires consent to be given in writing before the circulation of intimate images or performances, and allows for consent to be rescinded within three business days after signing any such consent. This provision is intended not only to cover private individuals who are victims of nonconsensual circulation of images, but also (and perhaps primarily) professional performers. The rescission provision does not apply if a party had three days to review the terms of the agreement, or was represented by an attorney, agent, or manager who provides written consent. I would prefer protection for performers to guarantee that their attorney, agent, or manager provides them with adequate notice of the terms of the contract, but otherwise these provisions seem sensible.
The bar on distributing sexually explicit images does not apply if the use is “a matter of legitimate public concern, a work of political or newsworthy value . . . or commentary, criticism,” or another use protected by the state and U.S. Constitution. The provision notes that merely by virtue of being a public figure the images do not become newsworthy in nature—which comports with existing case law in New York and elsewhere.
Overall, this is the first version of a proposed right of publicity bill in New York in recent years that seems unlikely to cause significant harm to individuals or to unduly limit creative expression. And it may positively provide greater protections against the circulation of sexually explicit images. I note that to more meaningfully protect those depicted without consent in circulated explicit material, the bill should be revised to provide statutory damages for that claim, just as it does for the uses of the identities of deceased personalities.