New York Assembly Bill 8155 and Senate Bill 5857

Summary

New York A.B. 8155 and S.B. 5857 would amend state’s existing right of publicity law to extend the right to individuals post mortem and broaden the right beyond a person’s name, portrait, picture or voice.

A.B. 8155 would create a post mortem right of publicity for 40 years in a person’s name, voice, signature, characteristic or likeness. “Characteristic” is defined as a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual. “Name” is defined as an actual or assumed name or a nickname. The bill includes a broad exemption for non-commercial uses of a person’s name voice, signature, characteristic or likeness based on the exemption language in California’s post-mortem right of publicity law.

The bill was subsequently amended to exclude from exemption for non-commercial works any work “that includes a commercial use and replicates the professional performance or activities rendered by an individual if the replication is inextricably intertwined with the right of publicity of the individual.”

S.B. 5857 would create a post mortem right of publicity in a person’s “persona” for 70 years after death. “Persona” is defined as a person’s name, portrait, picture, image, voice, signature, photograph, likeness, distinctive appearance, gestures or mannerisms. The present law limits the right to a person’s name, portrait, picture or voice. The bill does not include a specific exemption for non-commercial uses.

S.B. 5857 was amended by replacing it with amended version of A.B. 8155.

Status

Both bills died when the legislature adjourned.

Legislative Action

Media Coalition submitted a letter to the Assembly explaining why we believe A.B. 8155 as amended would have a chilling effect on speech protected by the First Amendment. We also helped build a large diverse coalition of trade associations and organizations, media companies, academics and free speech advocates to urge the New York State Assembly to amend or defeat  the legislation.   

Analysis

The amendment to the exemption for non-commercial use of a person’s name, signature, voice, likeness or characteristics will inevitably have a chilling effect on First Amendment protected speech. The amendment makes the meaning of the exemption language unclear, which will invite frivolous lawsuits. Rather than being able to rely on the unambiguous list of content and media that are not subject to the right, speakers will have to guess what use of a person’s “characteristics” are “inextricably intertwined” with the person’s right of publicity or what amounts to “replication” of a professional performance or activity.

History

  • S.B. 5857[3] was introduced on May 2, 2017, and referred to the Judiciary Committee.
  • Assembly Bill 8155[1] was introduced on May 30, 2017, and referred to the Judiciary Committee.
  • On June 13, A.B. 8155 was amended to create a loophole in the exemption for non-commercial use of a person’s name, likeness or characteristics.
  • S.B. 5857 was amended by substituting the text with A.B. 8155.
  • On June 15, 2017 Media Coalition submitted a legal memo [1] to the committee explaining our concerns with the amendments to the bill.
  • On June 21, both bills died when the legislature adjourned without taking further action on either of them.