New York
New York recognizes a right to prevent the appropriation of one’s name or likeness by statute only. New York’s highest court was the first to consider whether there was a right of privacy. After it rejected such a right, the ensuing outrage was so great that in 1903 New York passed the country’s first privacy law. On November 30th, 2020, the Governor of New York signed into law a new postmortem provision which for the first time will add a postmortem right to the state law, lasting 40 years after death. This new law also addresses the “unlawful dissemination or publication of a sexually explicit depictions.”
Statute
YES.
New York provides civil and criminal actions to prevent the unauthorized use within the state of the “name, portrait or picture of any living person [for] advertising purposes, or for the purpose of trade.” The civil action protects against the same uses, but also adds “voice” to the list of attributes that are protected against unauthorized use.
The statute requires written consent. Protection for voice was added in 1995. Section 50 provides the criminal cause of action and § 51, the civil one.
N.Y. Civ. Rights Law § 50. Right of Privacy
N.Y. Civ. Rights Law § 51. Action for Injunction and For Damages
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Common Law - Right of Publicity
NO
The New York Court of Appeals, the highest court in the state, has expressly held that there is no common law right of publicity.
Prior to the pronouncement in Stephano, some courts, particularly federal ones, had erroneously concluded otherwise. Ironically, the case credited with creating the “right of publicity,” Haelan Labs. v. Topps Chewing Gum, 202 F.2d 866 (2d Cir. 1953), is not good law because it was based on common law rights within New York.
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Common Law - Right of Privacy-Appropriation Tort
NO
Messenger ex rel Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (NY 2000)
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Roberson v. Rochester Folding Co., 64 N.E. 442 (N.Y. 1902)
Post-Mortem Right
Yes
The state will recognize a postmortem right of publicity for 40 years after death 180 days from Nov. 30, 2020, the date the Governor signed the new postmortem bill. The law has ample exceptions for expressive works and also adds a provision addressing digital replicas of deceased performers. For a complete write-up of the bill see https://www.rightofpublicityroadmap.com/news-commentary/new-york-reintroduces-much-improved-postmortem-right-publicity-bill
Senate Bill No. S05959D (signed on Nov. 30, 2020)
Limits on Right
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?
NO
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Does the law protect persona?
MOSTLY NO
The statute is limited to use of name, photograph, portrait and voice. New York courts have allowed claims based on the use of look-alike models, but federal courts have rejected claims for protection of characters and for M & M’s dressed like a particular performer.
Notably, a federal court has suggested that the use of some look-alikes do not fall within §§ 50 & 51. See Allen v. Men’s World Outlet, Inc., 679 F. Supp. 360 (S.D.N.Y. 1988). When lower courts in New York thought there was a common law right, they interpreted it as broader than the statutory provision. In Lombardo v. Doyle, Dane & Bernbach, Inc., 58 A.D.2d 620 (N.Y. App. 1977), a New York appellate court held that the evocation of a bandleader’s style violated the plaintiff’s rights of “exploitation” over his “public personality.” The Lombardo court held, however, that such a claim was not permissible under Civil Rights Law §§ 50 & 51.
Onassis v. Christian Dior-New York, Inc., 472 N.Y.S2d 254 (N.Y. Sup. Ct. 1984)
Burck v. Mars, 571 F. Supp.2d 446 (S.D.N.Y. 2008)
Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?
NO
The statute is broader and allows for liability for any trade purposes. However, many New York courts have held that expressive works do not meet the requirement of a use for advertising or trade purposes, and that advertising for such items is also permissible. Other New York courts, however, have permitted claims in the context of noncommercial speech, including uses in movies, books, and on t-shirts.
Some decisions have allowed for advertisements and merchandise for protected works. See, e.g., Hoepker v. Kruger, 200 F.Supp.2d 340 (S.D.N.Y. 2002); Namath v. Sports Illustrated, 48 A.D.2d 487 (N.Y. App. 1975); but see Pearce v. Manhattan Ensemble Theater, 528 F. Supp.2d 175 (S.D.N.Y. 2007) (allowing claim in context of theater advertising)
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Foster v. Svenson, 128 A.D.3d 150 (N.Y. App. 2015)
Delan by Delan v CBS, Inc., 91 A.D.2d 255 (N.Y. 1983)
Ward v. Klein, 809 N.Y.S.2d 828 (N.Y. Sup. Ct. 2005)
Shamsky v. Garan, Inc., 632 N.Y.S. 2d 930 (N.Y. Sup. Ct. 1995)
Binns v. Vitagraph Co., 103 N.E. 1108 (NY 1913); Gautier v. Pro-Football, Inc., 107 N.E.2d 485 (NY 1952); Titan Sports, Inc. v Comics World Corp., 870 F.2d 85 (2d Cir. 1989)
Statutory Defenses
The statute provides a small number of exemptions, including:
- Display of a professional photographer’s work in her place of business (unless a written complaint is received)
- resale of authorized works
N.Y. Civ. Rights Law § 51. Action for Injunction and For Damages
First Amendment Analysis
New York courts have developed a robust case law protecting uses that are deemed newsworthy or about matters of public interest. These doctrines are intended to protect First Amendment interests. The state also recognizes an incidental use exception. New York courts have frequently held that movies, works of art, and magazines are uses that are newsworthy and/or matters of public interest, or that on the basis of the First Amendment one must read purposes of trade as excluding such items. However, if uses have no relationship to the underlying work or the use is a disguised advertisement, there may be liability even if the use appears in an expressive work or magazine or newspaper.
One line of cases that continues to be at least partially endorsed by the state Court of Appeals allows for liability for uses in expressive works that purport to be truthful, but in fact are fictional. It’s hard to fully square these cases, e.g., Binns v. Vitagraph Co. of Am., 103 N.E. 1108 (NY 1913), with more recent decisions, but the highest court of the state has declined to overrule these cases.
Messenger ex rel Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (NY 2000)
Finger v. Omni Publications International, Inc., 566 N.E.2d 141 (NY 1990)
Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)
Foster v. Svenson, 128 A.D.3d 150 (N.Y. App. 2015)
Delan by Delan v CBS, Inc., 91 A.D.2d 255 (N.Y. App. 1983)
Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995)
New York also sits in the Second Circuit Court of Appeals, which considered a First Amendment defense to a right of publicity claim under Oregon law and concluded that, at least in the context of expressive works, uses of others’ names are protected by the First Amendment unless the use is “wholly unrelated” or “simply a disguised commercial advertisement for the sale of goods or services.” This test seems to track that previously adopted by and regularly employed by New York courts.
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).
Other Commentary
Several New York courts have held that copyright law does not preempt the state’s privacy laws.
Shamsky v. Garan, Inc., 632 N.Y.S. 2d 930 (N.Y. Sup. Ct. 1995)
Ippolito v. Ono-Lennon, 526 N.Y.S.2d 877 (N.Y. Sup. Ct. 1988)
New York courts have also held that an agent can waive a client’s rights over his image in perpetuity even though the client never knew of the waiver or agreed to the use.
Cory v. Nintendo of Am., Inc., 185 A.D. 2d 70 (N.Y. App. 1993)
One New York court has held that the value of a person’s acting and modeling career is marital property subject to distribution in divorce proceedings.
Golub v. Golub, 527 N.Y.S.2d 946 (1988)