Joining the majority of states, New York recently enacted a new right of publicity statute that extends the right past death. New York Governor Andrew Cuomo signed the legislation on November 30, 2020, establishing a right of publicity (N.Y. Civ. Rights Law § 50-f) for deceased persons (and their descendants) domiciled in New York to protect against the commercial exploitation of the person’s name, voice, signature, photograph, or likeness after death. However, unlike other post-mortem right of publicity laws that are broader in reach, New York’s statute carries a caveat—the post-mortem right only protects persons whose rights of publicity have commercial value either at the time of their death or because of their death.
In addition to the “commercial value” requirement, which the legislation employs by providing a definition of the qualifying person who is referred to as a “deceased personality,” Section 50-f also contains a few other restrictions. Notably, the law only protects qualifying deceased personalities for a period of forty years after death. As the legislation also makes clear, the statute will not have retroactive effect, and will not take effect until May 29, 2021.
The legislation leaves New York’s other rights of privacy/publicity statutes for living persons—N.Y. Civ. Rights Law § 50 and § 51—untouched yet goes further than Section 50, by extending the right to protect against exploitation of a deceased person’s “likeness, whereas the statute applicable to the living only protects “name, portrait or picture.” Additionally, the statute is one of the first to restrict “deep fakes” and provides protections to “deceased performer[s],” which is broadly defined, against deceptive use of their “digital replica[s] in a scripted audiovisual work as a fictional character or for the live performance of a musical work.” Disclaimer language can be used to avoid liability.
The new post-mortem statute provides that these rights may be transferred by contract, license, trust, or will, but successors in interest must register the right with the Secretary of State in order to be able to bring a claim. Section 50-f also includes provisions authorizing statutory damages of $2,000, in addition to profit awards from attributable unauthorized use and punitive damages, but no attorneys’ fees.
Notably, the statute contains specific exceptions to provide First Amendment breathing room, for both newsworthy and expressive works. As New York is home to many entertainment, broadcasting, publishing, sports, and arts industries, specific exemptions cover the publication of literary, educational, and other audio-visual and creative works for broad purposes including political, public interest, and newsworthy uses, such as for comment, criticism, parody, or satire. Significantly, for the television and film industry, it clearly protects documentaries, docudramas, and historical or biographical works, regardless of the degree of fictionalization.
The enactment of Section 50-f is a win for celebrities, unions, and advocacy groups that have led efforts to expand the state’s right of publicity law to provide post-mortem rights, while at the same time giving the entertainment industry clear carve-outs from liability. New York has for a long time remained a notable holdout, while other states have passed expansive descendible statutory rights of publicity, treating the right as a property right, transferable at death instead of a personal right that expires at death. As New York does not recognize common law protection for rights of publicity, the passage of an enhanced statutory right was necessary to permit recognition of post-mortem rights in the state, which first passed its statutory right of publicity bill for living persons in 1904.