United States: It's Baaaaack! New York State Takes Another Stab At Right Of Publicity

Guess what? Industry and watchdog groups are not happy

Eternal Return

The New York state legislature is taking aim at another right of privacy/publicity overhaul push, on roughly the one-year anniversary of the last time it tried to get the measure through. The Electronic Freedom Foundation (EFF), a prominent digital rights group, is not excited.

"In what now appears to be an annual ritual, a bad right of publicity law is being rushed through at the end of the legislative session in New York," kicks off the EFF's summary of the new bill. What's the problem? The foundation claims that the bill's provisions will cause an increase in celebrity litigation in New York and will pressure heirs to monetize the memories of their famous ancestors.

The Foundation Finds Faults

The EFF bases its criticism on a few distinct points. First, the bill allegedly redefines the right of publicity as a property right rather than a personal right. "Publicity rights were originally and properly construed as a narrow subspecies of privacy rights, designed to prevent unfair commercial exploitations of one's own likeness," the foundation writes in an open letter to the legislature.

Second, because the value of a transferable publicity right would be enormous in certain cases, the EFF argues, heirs might be forced into marketing or other agreements to offset the tax burden the right imposes. Additionally, the new bill allows claims "without regard to whether the [offending] use or activity is for profit or not-for-profit," which the EFF believes will chill "a wide range of non-profit speech and activism inspired by deceased individuals."

The EFF also asserts that the bill would "turn the state of New York into a litigation destination" for celebrities because of its broad interpretation of publicity rights. Because the bill treats publicity rights as property rights, such rights would become transferable and more open to dispute from celebrities who may have transferred their rights to others who improperly use an image or likeness in a manner inconsistent with the celebrity's wishes.

Interestingly, the bill aims to quell the increasing use of digitally rendered celebrity images in pornographic works; however, the EFF notes that the term "pornographic work" does not have a settled definition and is at risk of being interpreted in a much broader manner than those imposed by First Amendment obscenity standards. Therefore, the EFF asserts that the bill will likely chill the creation of works that would be protected under the First Amendment.

The Takeaway

Another group, the Association of National Advertisers (ANA), joined the EFF in taking aim at the lack of domicile requirements for suits brought under the bill's aegis. "Unlike similar right of publicity statutes in other jurisdictions," the ANA claims in its response to the legislature, "the proposed bill would grant the successors-in-interest to a decedent's right of publicity the ability to assert an action under this law, regardless of the decedent's domicile at his or her time of death." The ANA specifically notes the fact that "so long as an estate pays a $100 registration fee with the New York Secretary of State, they would have the right for 40 years to litigate against a marketer, broadcaster or media outlet even though the deceased person never set foot in the state."

This omission, the ANA claims, will cause a tremendous flood of right of publicity litigation, effectively making New York state the hub of legal action in this area. The association writes that the legislation "personally impacts the ANA membership by subjecting all national advertising campaigns to potential suit within the state, regardless of where the decedent was domiciled," which could chill advertising in the state.

Similarly, the ANA targeted the bill's registry requirement because of its lack of clarity with regard to who must register for rights. Without clarity, according to the ANA, "the registry will not function as contemplated." Additionally, with the bill's expansion of the right of publicity to include an individual's "persona," the ANA claims that because of the term's vague meaning, it will be difficult for marketers to determine whether a persona is covered or has been registered.

We will be tracking how this proposed legislation fares. Stay tuned for updates.

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