NY Extends Right of Publicity to Deceased Individuals

New York Governor Andrew Cuomo recently signed Senate Bill S5959D, which establishes a “right to publicity” for deceased individuals...

On December 1, 2020, New York Governor Andrew Cuomo signed Senate Bill S5959D, which establishes a “right to publicity” for deceased individuals. Under the new law, the right can also be exercised by their descendants.

“In the digital age, deceased individuals can often fall victim to bad actors that seek to capitalize on their death and profit off of their likeness after they pass away – that ends today,” Governor Cuomo said in a press statement. “This legislation is an important step in protecting the rights of deceased individuals while creating a safer, fairer New York for decades to come.”

Right to Publicity

Publicity rights have been protected since the advent of the Hollywood celebrity in the second half of the 20th century. The right of publicity typically refers to people’s legal right to control the commercial value of their image, name and likeness. The use of any of those three things without first obtaining the permission of the individual can constitute a violation of his or her publicity rights.

New York already protects the publicity rights of living people. Under N.Y. Civ. Rights Law § 50. Right of Privacy:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name,  portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.

New York law, N.Y. Civ. Rights Law § 51. Action for Injunction and For Damages, further provides:

Any person whose name, portrait, picture or voice is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the supreme court of this state against the person, firm or corporation so using his name, portrait, picture or voice, to prevent and restrain the use thereof.

Rights of publicity have become more complex in the digital age, particularly given the proliferation of social media. Technology advancements, such as the ability to create “deepfakes” (manipulated videos that appear real), have also created new legal issues.

New Right of Publicity

New York’s new law seeks to protect the unauthorized exploitation of performers for commercial purposes in the digital age after they have died. Under Senate Bill S5959D, any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons to whom the right of consent has been transferred, are liable for any damages sustained by the person or persons injured as a result thereof.

A personality is defined as: “A natural person domiciled in this state at the time of death 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, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling or solicitation of purchase of products, merchandise, goods or services.” Notably, the deceased must be domiciled in New York at the time of death for the law’s protections to apply.

The new law contains a number of exceptions. Notably, it is not a violation if the use of a deceased personality’s name, voice, signature, photograph or likeness is in a play, book, magazine, newspaper or other literary work, a musical work, artwork or other visual work, or in a work of political, public interest, educational or newsworthy value, including for purposes of comment, criticism, parody or satire, or in an audio or audiovisual work that is fictional or nonfictional entertainment. There is also an exception for an advertisement or commercial announcement of any of the above. 

Digital Replica Rights

Senate Bill S5959D further provides that any person who uses a deceased performer’s “digital replica” in a scripted audiovisual work as a fictional character or for the live performance of a musical work may be held liable for damages if the use occurs without prior consent, and if the use is likely to deceive the public into thinking it was authorized. A use will not be considered likely to deceive the public into thinking it was authorized if the person making such use provides a conspicuous disclaimer in the credits of the work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized.

Senate Bill S5959D defines a performer as: “A deceased natural person domiciled in this state at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.” Meanwhile, “digital replica” means 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.” Notably, a digital replica does not include the electronic reproduction, computer-generated or other digital remastering of an expressive sound recording or audiovisual work consisting of an individual’s original or recorded performance, or the making or duplication of another recording that consists entirely of the independent fixation of other sounds, even if such sounds imitate or simulate the voice of the individual.

Unlawful Dissemination/Publication of a Sexually Explicit Depiction

Senate Bill S5959D also bans “deepfake” pornographic videos. The new law specifically provides that a depicted individual will have a cause of action 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 that material did not consent to its creation, disclosure, dissemination, or publication.”

A “depicted individual” is defined as an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in a performance that was actually performed by the depicted individual but was subsequently altered to be in violation of the law. The term “digitization” means to realistically depict the nude body parts of another human being as the nude body parts of the depicted individual, computer-generated nude body parts as the nude body parts of the depicted individual or the depicted individual engaging in sexual conduct.

It is not a defense that there is a disclaimer in the sexually explicit material that communicates that the inclusion of the depicted individual in the sexually explicit material was unauthorized or that the depicted individual did not participate in the creation or development of the material. Additionally, a depicted individual may only consent to the creation, disclosure, dissemination, or publication of sexually explicit material by “knowingly and voluntarily signing an agreement written in plain language that includes a general description of the sexually explicit material and the audiovisual work in which it will be incorporated.”

This new right also contains a number of exceptions. It is not a violation of the law if the person discloses, disseminates or publishes the sexually explicit material in the course of reporting unlawful activity, exercising the person’s law enforcement duties, or hearings, trials or other legal proceedings; or the sexually explicit material is a matter of legitimate public concern, a work of political or newsworthy value or similar work, or commentary, criticism or disclosure that is otherwise protected by the U.S. and New York Constitution, provided that sexually explicit material will not be considered of newsworthy value solely because the depicted individual is a public figure.

Bringing a Claim

Under the new law, post-mortem rights will last for forty years after the person’s death and can be fully transferred by contract, license, trust, will or other instrument. In order to bring a cause of action, the deceased’s estate must register with the New York Secretary of State’s Office. The law will not be applied retroactively; the deceased must have died at least one hundred and eighty days after the bill became law. There is a one-year statute of limitations for rights of publicity violations. The statute of limitations for unauthorized dissemination of sexually explicit depictions is the latter of three years after the original dissemination or one year after discovery by the depicted individual.  Violations of the right of publicity and digital replica rights are compensable by damages equal to the greater of $2,000 or the amount of compensatory damages suffered by the injured party, as well as profits attributable to such use, and punitive damages. Plaintiffs bringing claims involving the dissemination of sexually explicit depictions may be entitled to injunctive relief, punitive damages, compensatory damages, and reasonable court costs and attorney fees. 

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Michael Sheppeard, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.