New York Reintroduces Right of Publicity Bill with Dueling Versions
May 23, 2019
Last week the New York Senate introduced a substantially revised version of a right of publicity bill, S5959. There are many promising improvements in this draft from the earlier assembly version (reintroduced in February), but also a lot of concerns raised by the draft. I am told that the Assembly will be introducing a different revision next week, so this post will focus on the new senate bill which is more than enough to cover.
Although filled with many good intentions, there were clearly many cooks in the kitchen, which has led to a complicated, confusing, and at times seemingly contradictory new version of the bill. It is certainly the most difficult statute or bill to parse that I have ever encountered on the right of publicity. The proposed statutory language raises so many questions about what it would do, that I can’t help but wonder what would happen if it passed in its current form. I suspect the litigation just to figure out what it means would take decades to work its way through the courts.
So while I applaud the efforts by the involved senators and staff to improve on the prior versions of the bill, I hope that the New York State senate (and assembly) recognize that this bill is not yet ready for serious consideration.
Unique Redefinitions of Right of Privacy and Right of Publicity
First, the big picture view of what the bill would do: It would replace today’s New York Civil Rights Law § 50. In its place would be a lengthy set of definitions, and then an added §50-f, titled “Right of privacy and right of publicity.”
This approach improves on the early versions of the bill in the Assembly that repealed the right of privacy in New York all together. The right of privacy statute has been around for more than one-hundred years, and has been successfully protecting the right of publicity in New York for over 100 years, as I have documented in my book on the subject. So it was wise to scale back on plans to eliminate the right of privacy in the state.
Unfortunately, the draft bill goes further than merely perserving the right of privacy by redefining what it means in a new way, quite different from its longstanding meaning under New York law. The bill also provides a novel definition of the right of publicity.
The newly proposed definition of the “right of publicity” is a right that survives death (for up to 40 years if registered), and is “an independent property right, derived from and independent of the right of privacy, which protects the unauthorized use of a living or deceased individual’s name, portrait or picture, voice or signature for advertising purposes or purposes of trade without written consent and the pecuniary loss sustained.” [emphasis added]
The newly proposed definition of the “right of privacy” is limited to the living, and is defined as a “personal right, which protects against the unauthorized use of a living individual’s name, portrait or picture, voice, or signature for advertising purposes or purposes of trade without written consent and the mental, emotional, or reputational injuries sustained.” [emphasis added]
I have emphasized the key additions that fundamentally alter how we understand these rights, because they create problems for figuring out what this bill would do.
As an initial matter, I do not think it wise (or necessary) to sever the long-joined-at-the-hip rights of privacy and publicity in New York, and at least in this version doing so causes more harm than good. If one of the central motivations for seeking a new law is to provide postmortem rights this could be accomplished with more targeted language that does not produce uncertainty for the living, as this version does.
The anomalous definitions of the rights dangerously sever economic and noneconomic interests, and complicate claims and recoveries for injuries that stem from the exact same use of a person’s identity. And, of the utmost concern, the proposed changes potentially leave many potential plaintiffs out in the cold, particularly ordinary citizens who would have claims under today's New York law but may be denied them under the new law.
For example, suppose Facebook authorizes (and profits from) the use of your name and likeness in a sponsored Coca-Cola advertisement on the platform―something it has done in the past and been sued for. Now suppose that the person depicted doesn’t suffer “mental, emotional, or reputational injuries,” but finds it outrageous that her name and likeness were used in this way. She thinks no such use should have been permissible, or at the very least, she should have been paid for the use. Yet, she has not sustained a “pecuniary loss”―she is not a famous celebrity who lost a licensing fee, nor is her reputation professionally or personally damaged. She should have a claim here, and does today, but this new version of the law seems to obliterate such actions.
Similarly, it is not clear what must be shown to demonstrate the required “pecuniary loss” to make out a right of publicity claim. Does this mean that only those who are commercializing a person’s identity (or that of a deceased person) can bring claims? And can they only bring claims if they can prove a pecuniary loss? Not lost opportunities or lost potential profits, but an actual pecuniary loss? Hard to tell what is intended here. This needs to be clarified or else this provision will not only lead to much litigation, but will likely leave many claims unsuccessful that I suspect were intended to survive (or even be created by) the bill's passage.
I also note that the redefinition of the right of privacy may mean that more privacy-based claims will fall to First Amendment defenses as the new definition places them squarely within the reach of the Supreme Court’s decisions in Hustler v. Falwell and Time v. Hill, in which the Court limited the enforcement of reputational and emotional-distress related claims. I suspect this is the opposite of what was intended by the drafters.
Given the bill's novel definitions of privacy and publicity, it is also not clear how decisions made under the old Section 50 (and 51) would apply to claims brought under the new “right of publicity” claim, or even the new "right of privacy" claims which should itself be a major stumbling block to passage of this proposed bill because of the uncertainty it would engender for content creators.
On the positive side, the bill retains an assembly addition that limited the ability to transfer children’s rights of publicity to third parties forever. While I am gratified that the legislature heard my grave warnings in this regard, it leaves other living individuals at risk of losing ownership of their own names, likenesses, and voices. Children are not the only ones who need protection from this danger.
As I have warned, if the right of publicity is made freely transferable―something not currently allowed under New York law, but that this bill would do―creditors could take ownership of a person’s identity. For example, if a celebrity declared bankruptcy, then her creditors could take ownership of her publicity rights. Similarly, ex-spouses could take an ownership interest in a person's identity when assets of the marriage are split. The bill does not address these possibilities. (I note that Illinois, which created a transferable right of publicity, specifically bars creditors from owning other's rights in their own identities.)
And even purportedly voluntary transfers should be barred or limited rather than enabled by the New York legislature. Allowing the free transerability proposed in this bill will place at risk aspiring actors, musicians, and models, who are all likely to sign away their rights of publicity for a chance of getting representation, or a record deal, or doing a photo shoot. Unions can step in to help, but not every deal or transaction is governed by union deals. The NCAA has already asked student-athletes to transfer those rights to them as a condition of receiving their scholarships and playing college-level sports. In addition, these transfers apply to everyone, including ordinary citizens who might discover that online terms of service could transfer ownership of our names, and likenesses to Facebook without any ability to reclaim these rights. The proposed bill allows this dangerous set of affairs, while existing New York law does not. I have written about these concerns at length in op-eds, articles, and my book.
I hope that the New York legislature will lead us away from this abyss rather than into it.
Who can Bring Claims?
Another knotty question this draft legislation presents is whether anyone other than the person whose persona is used can bring claims. Although the legislation allows for transfers, subsection 50-i(6) limits actions to those brought by the person whose persona is used, rather than whoever holds the title to the person’s right of publicity. Does this mean that a publicity-holder might be entitled to the profits from uses, but only the identity-holder could sue? That is an intriguing idea, but I can't tell if that is what is meant by the bill.
Sexually Explicit Images
The Senate bill also tries to tackle the problem of the circulation of and use of nonconsensual sexually explicit images. This is a serious issue and one that right of publicity laws can address, and also one that some states have chosen to handle via separate statutes directly targeted to this issue. I applaud New York for trying to address this problem clearly.
The proposed bill bars the unauthorized “use of a digital replica to create sexually explicit material in an expressive audiovisual work,” but only as a violation of a person’s right of privacy. Given the strange definition of privacy and publicity in the bill, one can’t help wondering whether this might lead to an unintended consequence: that adult entertainment performers could not bring a claim for unauthorized digital replicas of themselves used in sexually explicit material, because they arguably would suffer a financial rather than an emotional damage.
There is a proposed limit on contracts that authorize sexually explicit digital depictions in Section 50-f(1). The provision requires that such contracts include a general description of the depiction and the expressive audiovisual work in which it will be incorporated, and provide a 72-hour window to withdraw consent. This seems like a great idea, but the effectiveness of the provision is undercut by the ability of an authorized representative to approve the use, as well as the exception that if a person had 72 hours to review before signing then there is no retraction period.
Another motivating factor behind this bill is the addition of postmortem rights, as New York does not currently provide such rights. The bill provides the same 40 year term as prior drafts, but limits claims to those who died domiciled in New York (in contrast to earlier versions), which is a good narrowing of the expansive prior versions.
The bill allows the deceased's chosen heirs to transfer away postmortem rights, even though the primary argument for having such a right are the dignitary concerns of the survivors. Once the right is transferred away from those who are likely to be close family members or chosen stewards, the after-death rights shift to being purely about money-making. Such postmortem monetary interests should be narrower in scope, and may be adequately protected by state and federal unfair competition and false endorsement laws.
The law also leaves those who inherit such rights at risk of being forced to commercialize their loved one’s identities even if that is not what they or the deceased would want. As I have written, because of the federal estate tax, if the right of publicity is considered property of the estate, it will be taxed at what is considered its highest and best use―which is judged to be a commercialized one. This is something I discuss in my book. I have also written about some concerns with regard to the creation of postmortem rights in general in an op-ed about The Market in Dead People.
The proposed postmortem provision allows for the right to terminate if there are no heirs either through intestate succession or via a will’s residue, but does not seem to allow for an affirmative termination at the time of death if a decedent so chooses, which could avoid the estate tax issue.
I like the bill’s provision that indicates that the postmortem period will cease after 10 years if no one registers the person’s persona with the secretary of state, although I will concede that as drafted it is not entirely clear whether this is a bar on suits being filed without registration or a termination of rights provision.
The bill has many exemptions directed at protecting free speech, but then also has exceptions to these exemptions, and then exceptions to those exceptions, making these provisions very difficult to discern.
The bill provides exemptions from liability for uses in news, public affairs and sports broadcasts, an “account of public interest,” political campaigns, plays, books, magazines, newspapers, musical compositions, visual works, works of art, audiovisual works, radio or television programs deemed to be entertainment, and dramatic, literary or musical works. The exemptions also apply to works of political, public interest or newsworthy value, including “comment, criticism, parody, satire or a transformative creation of a work of authorship.” The reference to transformative creations may be trying to hint at support for California’s transformative work analysis for determining First Amendment defenses in right of publicity cases, but it is hard to be sure given the language used.
The provision exempts advertising for news and sports broadcasts, and those in political campaigns, but does not exempt advertising for artistic works. This differs from the standard exemptions for the advertising of such works that most other state statutes provide. This is a serious failing of the bill and likely runs afoul of the First Amendment. It means that it could be a violation of a person’s right of publicity to advertise that a movie or book is about a particular person.
Exceptions to the Exemptions
The bill then has an exception to the exemption for expressive works when a “digital replica” is used in an expressive audio visual or audio work or sound recording. Here the exemption applies when the digital replica appears to give the “clear impression that the professional actor represented by the digital replica is performing, the activity for which he or she is known, in the role of a fictional character” or gives the “clear impression that the professional singer, dancer, or musician represented by the digital replica is performing, the activity for which he or she is known, in such musical work;” or gives the “clear impression that the professional or college athlete represented by the digital replica is engaging in an athletic activity for which he or she is known.” These provisions seem overly specific, and ultimately are both too broad and too narrow. Why limit the claim to “professional actors,” “professional singers,” and “athletes”? How broadly or narrowly should we understand the term “activity for which he or she is known”? Would this leave out a well-known actor when a digital replica is made of her singing because she is known for acting not singing? Would these provisions mean that a YouTube sensation who talks about and shows his adorable cat wouldn’t have a claim if replicated in a film? If not, why not? And the inclusion of athletes seems different as the digital replicas would not be replacing live sporting events.
I note that the highest court of New York already suggested in Lohan v. Take-Two Interactive that digital avatars used in videogames (and by extension films) would fall within the scope of current right of privacy and publicity protections under state law. There does not seem to be a need for a new law to cover this territory.
Exception to the Exception to the Exemptions
As if the draft bill were not already too complicated, there is then an exception to the exception to the exemption. The exclusion from the exemption for liability for audiovisual and audio works that include digital replicas doesn’t apply if the use is “for purposes of parody, satire, commentary, or criticism,” or is “in a work of political, public interest, or newsworthy value, or similar work, including a documentary, regardless of the degree of fictionalization,” or if the use is “de minimis or incidental.” In other words, if it is any of those things we are back in a use that is exempted from liabilty. If this seems unnecessarily convoluted, it is.
This post has already gone on farther than most people’s attention spans, so thanks to those who haven't thrown up their hands in despair at this point. (And as a reward I will save you from my list of a number of other contradictory and incomprehensible provisions contained within the draft bill.)
There are many good intentions manifested in this bill, and many different objectives sought, but the draft as written may cause more harm than good. If New York is set on adding a postmortem right and express protections against the use of sexually explicit images, it might not want to open the can of worms it does in this draft. A better approach would be to simplify things and make separate individual bills targeted at these issues, as California has done. This would leave in place the right of privacy statute that is working and has worked for more than 100 years, while also addressing the current concerns.