Summary
New York Assembly Bill 7904 and Senate Bill 5650 would create a right of publicity in an individual’s name, voice, signature, image or likeness for any person deceased within the last 70 years who was domiciled in New York at the time of death. Section 34 of the bills provides an exception to the right for certain expressive uses. It protects artistic and creative works and allows books, plays, magazines, newspapers, music, film, radio, television and other media to use a living or deceased individual’s name or likeness in a range of fictional and non-fictional works.
However, the expressive use exception has a “caveat” and it is not available if it meets three conditions: “the work does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York Constitution.”
Status
The New York legislature adjourned its 2015 session. It carries over bills to the 2016 session, so A.B. 7904 and S.B. 5650 may be taken up again next year.
Analysis
The “caveat” to the expressive use exception will have a substantial chilling effect on First Amendment protected speech by increasing the likelihood that publishers, filmmakers and others will be forced to litigate to prove that their works do not contain images that are “primarily commercial,” “not transformative” and are not protected by the U.S. and New York Constitutions. The purpose of the expressive use exception is to avoid the threat of such costly litigation for creators and distributors of what is plainly non-commercial speech and not subject to the right of publicity. But because of this “caveat,” this legislation would require a court to rule that the speech is not subject to the right of publicity because it does not meet the first two conditions or is not constitutionally protected speech.
As a result, these conditions will undoubtedly increase the likelihood of expensive litigation. The surviving family or estate of a deceased person that is unhappy with a book, movie, article or show can more credibly threaten to litigate over its use. The heirs of a noted public figure, upset about unsavory revelations, could force the publisher or producer to establish their First Amendment rights in court to distribute the work, rather than being able to rely on the list of exceptions to lessen the time and cost of the litigation. The mere threat of costly and prolonged legal battle will lead to self-censorship by producers and distributors of biographies, histories, documentaries and other important social commentaries who do not have the financial means to defend themselves in court. If this caveat is included in the legislation, New York will encourage the heirs of a deceased person to try to establish that he or she was domiciled in the state to take advantage of the law.
History – A.B. 7904
- The bill was introduced [2] on May 29, 2015 and referred to the Assembly Committee on Judiciary.
- On June 11, 2015, Media Coalition submitted a memo in opposition [1], explaining the constitutional issues with the bill and its companion bill.
- The New York legislature adjourned its 2015 session, but it carries bills over to 2016.
History – S.B. 5650
- The bill was introduced [3] on May 22, 2015 and referred to the Senate Committee on Codes.
- On June 11, 2015, Media Coalition submitted a memo in opposition [1], explaining the constitutional issues with the bill and its companion bill.
- The New York legislature adjourned its 2015 session, but it carries bills over to 2016.