Legal Alert: New York Passes Post-Mortem Right of Publicity Law

The "right of publicity" generally prohibits the commercial use of someone's name or likeness. There is no federal right of publicity; rather, the right is governed by state law. There is a patchwork of state laws that govern the right, and determining which state law applies usually depends on where the plaintiff is (or was) domiciled. Some states have statutes specifically providing for a right of publicity, some recognize the right at common law, some recognize both, and some do not recognize the right at all.

An issue on which states that do offer a right of publicity differ is the extent to which the right can be applied after someone is deceased — known as a "post-mortem" or "posthumous" right of publicity. For example: California, the domicile of numerous celebrities, protects an individual's right of publicity for 70 years after his or her death. Tennessee, home of Elvis, protects it for an initial term of 10 years, but provided the persona is exploited, the rights can potentially last forever. Minnesota tried to pass a post-mortem right of publicity statute shortly after Prince's death, but withdrew the effort over First Amendment concerns — although one court has held that the right nonetheless exists at common law.

New York, on the other hand, has not recognized a post-mortem right of publicity. The issue was litigated at length fewer than 10 years ago, resulting in a 2012 9th Circuit decision holding that Marilyn Monroe was not entitled to any right of publicity; although she had died in California, the court held that she had been domiciled in New York at the time of her death. Although her estate was later able to assert trademark rights in her persona, such rights are distinct from a right of publicity and are dependent on other factors such as whether they were previously developed and maintained through exploitation.

On December 1, New York's Governor Andrew Cuomo signed into law an amendment to New York's right of publicity statute to provide for a post-mortem right of publicity. The revised statute applies to deceased performers and "personalities" — defined as anyone whose likeness had "commercial value" at the time of their death or whose likeness develops commercial value as a result of their death.

The revised statute provides a cause of action against anyone who:

• Uses the deceased person's name, likeness, voice, or signature on products or for advertising.
• Creates a realistic digital replica of the deceased person's likeness for purposes of inserting it in a movie, concert, etc., if the use is likely to deceive the public into believing the use was authorized (notably, the statute makes clear that a "conspicuous disclaimer" in the credits and any related advertising will render the use unlikely to deceive).

The statute recognizes fair use exceptions relating to parodies, works of criticism and commentary, news, and historical works. Interestingly, it also provides an exception for uses in a "political campaign" (so could John Lennon endorse an NYC mayoral candidate?). There is also an exception for uses that are "de minimis" or "incidental." The amendment also clarifies that the right of publicity is freely transferable and descendible, and there is a mechanism for owners of a deceased person's persona rights to register their claim with the Secretary of State. The rights do not last forever, however; the statute caps the post-mortem right at 40 years.

The same amendment creates a separate cause of action for revenge porn and so-called "deep fakes" — the act of digitally making it appear that someone gave a sexually explicit performance that they did not actually give. This applies to "persons" (presumably both living and dead), and does not require that they be famous or have exploited their persona. The statute also protects "entities" from such deep fakes — although one could be forgiven for having trouble imagining how that would manifest itself. Disclaimers are not a defense, and punitive damages are available.

This change in the law brings New York in line with most states that recognize a right of publicity, and certainly brings it in line with states that have significant celebrity populations. However, the duration of the post-mortem right, at 40 years, is on the shorter side of the range of protection these states afford.

Author: Jenifer deWolf Paine