Summary
New York Assembly Bill 5605-A and Senate Bill 5959-A would amend New York’s existing right of privacy law to create a new right of publicity for the life of a person plus 40 years after their death. It would bar the use of a person’s name, portrait or picture, voice, or signature (collectively, their persona) without written consent in advertising or for the purposes of trade (or fundraising).
The new right is a property right that can be transferred and is inheritable. While the right is limited to uses in advertising and for the purposes of trade, there is a statury exception to the right for expressive works in a news, public affairs, or sports broadcast; a work of entertainment; dramatic, literary, or musical work; an account of public interest; or a political campaign in a variety of media and types of communication.
However, the right of publicity treats digital replicas (computer generated or electronic reproduction) differently from other media. The right applies to an expressive work if it is intended to create the impression that the person is performing the activity he or she is known for in the role of a fictional character, a musical, or an athletic performance. There is a different, narrower exception to the right for certain noncommercial uses of digital replicas in parody, satire, commentary, or criticism; and works of political, public interest, or newsworthy value, or similar works, including a documentary.
The bills then create another category of use for digital replicas in a “pornographic” audiovisual work. These images can be published only with the consent of the person whose persona is being used, even in expressive works. For this content, there is narrow exception for a matter of “legitimate purpose,” whatever that vague term means, and for some news or commentary.
These bills are similar to Assembly Bill 8155-B and Senate Bill 5857-B from 2018 and Assembly Bill 8155 and Senate Bill 5857 from 2018. Those bills died when the legislature adjourned.
Status
A.B. 5605 was not brought up for a final vote. The legislature has adjourned.
Action
On June 12, 2019, Media Coalition submitted a memo in opposition to the bill to the Committee on Judiciary.
Analysis
Generally, the right of publicity protects individuals against the unauthorized commercial use of their persona. While it is important to prevent the exploitation of an individual’s identity, any legislation that does so must include robust protections for the First Amendment rights of creators, producers, and distributors of expressive works that include real-life individuals’ names or likenesses, including motion pictures, television programs, books, magazine articles, music, video games, and works of art. Important, these works enjoy full constitutional protection regardless of whether they are sold, rented, loaned, or given away, and whether they are intended to entertain or to inform or both.
The new right of publicity in these bills will have a serious chilling effect on the creators and distributors of speech by inviting expensive and frivolous lawsuits. The legislation sweeps away 100 years of case law by creating a separate right of publicity with different sets of rules for different kinds of media and content. While New York courts have been protective of the First Amendment in interpreting the existing right of privacy law, the amended language in the bills makes uncertain the value of this body of law. The creation of the new right will force speakers to defend their works by re-litigating many of the legal questions that have been considered settled law. Even if the courts ultimately hold that the prior case law interpreting the right of privacy applies to the new right of publicity, it will take a great amount of time and substantial financial resources to reach that result.
Right of publicity legislation must have a single broad and unambiguous exception for noncommercial uses to spare creators the burden and expense of lawsuitss that target their exercise of their First Amendment rights. Such an exception allows producers and distributors of content to avoid expensive litigation brought by a person, their heirs, or their estate that is unhappy with their portrayal in a book, movie, article, or show.
History
On February 14, 2019, A.B. 5605 was introduced and referred to the Assembly Committee on Judiciary.
On May 16, 2019, S.B. 5959 was introduced and referred to the Senate Commitee on Judiciary.
On June 6, 2019, the bill was amended.
On June 12, 2019, Media Coalition submitted a memo in opposition to the bill to the Assembly Committee on Judiciary.