New York is now one of a few states, California and Tennessee among them, to have a postmortem right of publicity, as the new section 50-f of New York Civil Right Law became effective on May 29, 2021. The law does not apply retroactively but applies instead only to living individuals and deceased individuals who died on or after May 29, 2021.
The bill (S5959D /A.5605-C) passed the New York Senate unanimously on July 22, 2020, and passed the State Assembly unanimously but for one vote.
The new law protects the rights of publicity of both deceased performers and deceased personalities, for the forty years following their deaths.
Section 50-f-3 states that these rights are property rights, and that they can be freely transferred by contract, license, gift or trust. They are also freely descendible, either by will or, if the person died intestate, following the laws of intestate succession (Section 50-f(5).
Scope of the law
Only natural persons domiciled in the state of New York at the time of their death can be protected. The legal definition of “deceased performer” as someone “who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument” does not call for much comment, but such is not the case for Section 5-f‘s definition of a “deceased personality” as someone:
“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.”
The definition recognizes that one can be famous without being a performer. This is, of course, the case with politicians and other public figures, but has become a trait of our society in love with images. Paris Hilton may have been one of the first persons to be famous for being famous, but many now enjoy fame without being a performer or a public figure. Influencers, for instance, do not perform, yet are famous, at least to their followers, and they use their likeness for the purpose of selling and advertising products.
More gruesomely, the law recognizes that one can become famous for the circumstances of one’s death, may it be as the victim of a crime, a gruesome accident, or because of a heroic act.
The rights of the successors in interest/The Public Registry
The successors in interest may provide notice of such interest through a public registration and posting maintained by the New York Secretary of State. Section 50-f-7(a) uses the word “may” and thus it appears that this formality is not mandatory. This administrative procedure is addressed in 19 NYCRR 13:
- 131.2 Fee. The fee for filing a registration of a person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof with the Department of State under Civil Rights Law section 50-f is $150.
- 131.3 Verification by affirmation. (a) The registration form for any person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof may be verified by affirmation under penalty of perjury. (b) In the case of an agent, lawfully appointed, completing a registration form on behalf of a person claiming to be a successor in interest to the rights of a deceased personality or a licensee thereof, the agent shall be required to verify by affirmation, under the penalty of perjury, that such agent has been duly appointed to file such registration, knows the contents of such registration, and believes the same to be true.
Digital replicas of deceased performers
Section 50-f(1)(c) addresses the issue of “digital replica”, which it defines 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. 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, nor 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.”
Unauthorized digital replicas of deceased personalities are not within the scope of the law. Kim Kardashian-West recently received for her 40th birthday a hologram of her late father, who was a famous attorney. Ms. Kardashian is a California resident, and so was her father at the time of his death. However, would the family have lived in New York, an authorization to produce the hologram would not have been required under the statute, as an attorney is not a performer.
Section 50-f(2)(b) forbids using without authorization the digital replicas of a deceased performer “in a scripted audiovisual work as a fictional character or for the live performance of a musical work, ” but only “if the use is likely to deceive the public into thinking it was authorized.” Such authorization can be provided either by the performer, while alive, or by a successor in interest.
An unauthorized use is, however, not deceptive “if the person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized …”
Section 50-f(2)(d)(ii) provides an exception to Section 50-f(2)(b) if the digital replica is a satire, a parody or a critique. Works which are newsworthy are also exempt. The statute gives as example of such works documentaries or historical works.
However, this exception does not cover works using the digital replicas of a deceased performer “in a live performance of a musical work.” Having performers take the stage after their death via a hologram is now a lucrative business. One of the first of its kind was presented in 2012 at Coachella when the late Tupac Shakur was seen on stage with Snoop Dogg and Dr. Dre.
Remedies
As for remedies, the law provides damages to the greater of 2,000 dollars or the compensatory damages suffered by the injured party or parties, who may also claim lost profits stemming from the unauthorized use which were are not taken into account when computing the compensatory damages. The law also provides punitive damages.
First Amendment exceptions
Using a deceased personality’s name, voice, signature, photograph, or likeness without authorization is allowed in literary works such as plays, books, magazines, newspapers, in musical works, visual works, and works “of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; audio or audiovisual work, radio or television program, if it is fictional or nonfictional entertainment,” Section 5-f-2(d)(i). The exception extends to advertising of these works.
Use without authorization of a digital replica of a performer is authorized for parody, satire, commentary, or criticism purposes and in “works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization,” Section 5-f-2(d)(ii). The law also authorizes use without authorization to advertise these works.
If such digital replica represents a deceased performer, as herself or as himself, “regardless of the degree of fictionalization,” the use is also authorized, “except in a live performance of a musical work.” Section 50-f also authorizes de minimis or incidental use without authorization.
Section 50-f(2)(d)(iii) provides that the statute authorizes “use of a name, voice, signature, photograph, or likeness… in connection with any news, public affairs, or sports program… or any political campaign.” This may be interpreted as referring only to deceased performers and personalities, but it could also be interpreted as encompassing digital replicas, as “it shall not be a violation of this section…”appears to refer to the entire section 50-f.
If the use of digital replicas is authorized in “any political campaign,” electoral elections as we know them now may drastically change in the next few years . Digital replicas of politicians are agile vessels to propagate “fake news,” and then-President Trump retweeted last year a “deepfake” of then Presidential candidate Joe Biden.
The New York law does not address “deepfake” use in political campaigns, but addresses sexually explicit deepfakes in the new Section 52-c, which provides a private right of action “for unlawful dissemination or publication of an intimate image,” including digitized sexual images. Section 52-c will be discussed in a separate post.
Image is courtesy of Flickr user Kevin Dooley under a CC BY 2.0 license.
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