New York Right of Publicity Bill Resurrected Again
June 6, 2018
Once again as the New York legislature nears the end of its term for the year, the Assembly is trying to push through an ill-thought-out right of publicity bill without allowing for hearings and public debate on the bill.
An amended version of the bill was introduced yesterday. The amended version suffers from most of the same failings as the prior versions, and amendments. It jeopardizes a vast array of creative works, and biographical works, and continues to jeopardize our ability to maintain ownership of our own identities by creating a law that allows creditors, ex-spouses, and over-reaching managers―among others―to take ownership of a person’s name, likeness, voice, and “persona.”
Strangely, the drafters clearly recognized some of the dangers of such transferability by for the first-time adding in a limit on transfers of children’s rights of publicity so parents cannot sell off their children’s own identities forever. Nevertheless, the bill completely fails to protect those over 18 years of age from the very same dangers of such transferability. For a discussion of why this is so dangerous particularly to SAG-AFTRA members (the organization pushing this bill), see my op-ed on why "Only Robin Wright Should Own Robin Wright."
The bill also continues to grant a windfall to heirs of dead celebrities without ever justifying why they should receive one at the expense of the public. Nor does the bill address the significant estate tax danger that can force the commercialization of the dead against both their and their families’ wishes.
The bill also continues to open the doors of New York courts to all plaintiffs regardless of their domicile.
The amended version does try to address a few concerns leveled against the prior version (such as parents selling off their children’s identities in perpetuity), but these changes are largely insufficient and other problems have been added into the mix. Here are just a sampling of some of these changes:
The new version retains the right of privacy, and therefore the more than 100 years of case law interpreting the right. However, the bill now adds an additional, separate right for both the living and the dead called a “right of publicity.” It remains uncertain how this allegedly new version of the right of publicity will be interpreted or whether the privacy-based case law will apply to such publicity-based claims. (As I have written elsewhere, New York’s right of privacy is the original right of publicity, so the legislative claim of creating a new right is historically misleading.)
The amended bill continues to include some exemptions for certain types of uses, but the exemptions are insufficient in a variety of ways. First, the exemptions do not apply to the privacy-based claims. Second, although advertising for news and sports broadcasts is protected, advertising for other exempted uses (such as plays, books, movies, and music) is not.
Additionally, the bill contains a “digital replica” provision which is extremely broad, and potentially prohibits the recreation of performances in biographical pictures about real actors or athletes if the films include scenes of those characters performing roles or playing games--something standard in such films. This threatens the ability of creators to make biographical movies, videogames, and television shows about actors or athletes because even if those individuals are played by someone else, a viewer might think that the “individual represented by the digital replica is performing” the activity––an activity that the person is known for doing. The provision also encompasses sound recordings and could prevent sound recordings that evoke a particular performer in the mind of listeners, something that would conflict with federal copyright law (which allows sound-alike recordings in some instances).
Although the digital replica provision suggests an exemption for works of “parody, satire, commentary or criticism,” and works of “political, public interest, or newsworthy value,” such as documentaries, it is not clear how this exemption would be applied to fictionalized biopics, or in the context of sound recordings. This uncertainty would further chill speech and engender much litigation interpreting these vague and seemingly contradictory provisions.
Finally, the amendment adds a provision seemingly intended to address concerns over sexually explicit deepfakes, but does not define what it means by a “use in a pornographic work.” This provision is therefore unconstitutionally vague. If enforced, it could jeopardize movies, television series, and other works that include R-rated sex scenes in the context of telling stories about real people.
All-in-all this amended bill is no better than the prior versions introduced last spring, and in some respects is even worse. New York need not revise its current law which is working just fine. Nevertheless, if New York State wishes to extend postmortem protection and to address concerns over the use of digital avatars to replace actors, it should propose distinct, narrower, and more carefully drafted statutes to address these issues.