Summary
A.B. 8155b and S.B. 5857b 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 — i.e., their persona — without their consent in advertising or for the purposes of trade. The new right is a property right that can be transferred and is inheritable. Name is defined to include a person’s nickname.
The legislation provides a statutory exception to the right to protect non-commercial speech. Speech is not subject to the right for use of a persona in news, public affairs or sports broadcast; an account of public interest; or a political campaign, in a variety of media and types of communication.
However, the exception excludes digital replicas, which are still subject to the right in non-commercial uses, if the use 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.
Digital replicas then get a different exception to protect non-commercial speech if it is in a parody, satire, commentary or criticism; works of political, public interest or newsworthy value; or similar works, including in a documentary.
Finally, the legislation creates another set of rules for digital replicas in a “pornographic” audio-visual work. The right of publicity always applies to these digital replicas, even if a persona is not being used in advertisement or for the purposes of trade. However, “pornographic” is not defined, so there is no guidance as to what content would be subject to the right of publicity even in non-commercial uses. There is no exception to this provision for any non-commercial use.
Status
The New York legislature adjourned without passing the bill. The bill is dead.
A.B. 8155 and S.B. 5857 were introduced in 2017.
On June 5, 2018, the entire texts of both bills were amended and replaced with A.B. 8155b and S.B. 5857b.
Action
Media Coalition submitted several legal memos to the New York Assembly and State Senate, explaining the constitutional objections to the bills.
In 2017, earlier versions of the bill were considered by the New York legislature. Media Coalition also submitted letters explaining why those bills would have had a chilling effect on speech protected by the First amendment. Click here to read more about those bills.
Analysis
The legislation would create a complicated and confusing new right of publicity in New York, with different rules for different kinds of media and content.
The new right of publicity would sweep away 100 years of court decisions that have been protective of First Amendment-protected speech. This will have a serious chilling effect on the creators and distributors of speech by inviting expensive and frivolous lawsuits. The creation of the new right will force speakers to defend their works by re-litigating many of the legal questions that have long been considered settled law.
If the legislature is going to create a new right of publicity, it must have a single broad and unambiguous exception for non-commercial uses to spare creators and producers of speech the burden and expense of lawsuits that target their exercise of their First Amendment rights. This legislation does the opposite, by only providing protection for speech after subjecting it to an analysis of how it should be defined and a determination of the creator’s intent and the mindset of their audience.
History
- New York Assembly Bill 8155 and Senate Bill 5857 were introduced in 2017. After a few amendments, no further action was taken on the bills.
- On June 5, 2018, A.B. 8155 was amended and replaced with an almost completely new bill, 8155b. S.B. 5857 was amended the next week to be identical to 8155b.
- On June 21, 2018, the New York legislature adjourned without voting on the bill. The bill is dead.