Summary
New Hampshire Senate Bill 175 would create a right of publicity that allows a person to control the commercial use of his or her identity. The legislation confers the right for the life of a person plus 70 years and is retroactive for anyone who predeceased the enactment of the bill.
The bill initially included a specific exception to the right for expressive works, in order to protect the right to use the name of likeness of a living or deceased individual in books, plays, magazines, newspapers, music, film, radio or television program and other material that is of political or newsworthy value. This exception for expressive works was subsequently removed by the New Hampshire House.
Status
Gov. John Lynch vetoed the bill. The vote to override the veto failed.
Analysis
Even though the right of publicity applies to commercial works, the exception for expressive works is included in these laws to protect creators and distributors of non-commercial speech. Adding a clear, unequivocal list of material exempted from this right protects these creators and distributors from costly and prolonged litigation. Without this list, these creators and distributors could be sued by any individual or the individual’s family who is unhappy with an uncomplimentary portrayal in a book, movie, article or show. It forces creators and distributors to go to court to vindicate their First Amendment rights to publish the material.
In turn, the threat of costly and prolonged litigation would prompt self-censorship by producers and distributors of biographies, histories, documentaries and other important social commentary. A publisher or movie producer would have to consider the cost of litigation when deciding to publish an unflattering biography or produce a critical documentary about controversial public figures such as Donald Trump, Tiger Woods, Martin Luther King, Jr., J. Edgar Hoover, Richard Nixon or the Kennedys. A book or film exploring the life of any of these public figures would be unquestionably protected by the First Amendment. However, a lawsuit filed by the respective individual or their heirs could take years to decide and cost hundreds of thousands of dollars.
The risk of expensive litigation is heightened in New Hampshire because there is very little case law that directly or indirectly addresses the right of publicity as it would be codified in this legislation. New Hampshire courts have acknowledged the common law tort of invasion of privacy by appropriation, but there is very little case law defining the contours of the use of the name or image of a public figure and their commercial uses. This lack of case law is an invitation to those seeking to stifle free speech with the added burden of litigation.
History
- On January 19, 2011, the bill was introduced [5] and referred to the Senate Committee on Commerce. As introduced, the bill included a list of expressive works exempted from the right. The committee held a hearing on the bill on March 8, 2011.
- On March 24, 2011, the bill was amended [6] to add a provision that video games are specifically not included in the list of expressive works exempted from the right.
- On October 26, 2011, Media Coalition sent a letter [4] to Sen. Russell Prescott, chairman of the Committee on Commerce. The letter explains that video games are fully protected by the First Amendment, noting the recent Supreme Court ruling in Brown v. Entertainment Merchants Association.
- The bill was carried over to the 2012 legislature session. On January 19, 2012, the Senate Committee on Commerce amended [7] the bill to add video games to the list of expressive works exempted from the right. The committee recommended the bill be passed as amended.
- On January 25, 2012, the Senate voted to pass the bill and sent it to the House for consideration. The bill was referred to the House Committee on Commerce and Consumer Affairs.
- The committee amended [8] the bill on May 9, 2012. The House amendment no longer includes a list of expressive works exempted from the right of publicity. The committee recommended the bill be passed as amended.
- The House passed the bill as amended on May 15, 2012. The bill was sent back to the Senate for concurrence with the amendment.
- On May 16, 2012, Media Coalition sent a letter [3] to Senate President Peter Bragdon, urging him not to concur with changes. The letter explains that the lack of an expressive works exception leaves creators and distributors of First Amendment-protected material vulnerable to lengthy and costly litigation.
- The Senate concurred with the House amendments on May 23, 2012. The bill was sent to Gov. John Lynch for his signature.
- On June 8, 2012, Media Coalition sent a letter [1] to Gov. Lynch, asking him to veto the bill. The letter reiterated concerns that the bill provides insufficient protection for the First Amendment rights of creators and distributors of expressive works.
- On June 12, 2012, Gov. Lynch vetoed the bill. In his message [2] to the legislature explaining the veto, he said that the bill “will inhibit constitutionally protected speech.”
- On June 27, 2012, the Senate vote to override Gov. Lynch failed. The veto is sustained.