United States: New York's Right To Publicity And Deepfakes Law Breaks New Ground

On November 30, 2020, New York Governor Andrew Cuomo signed a path-breaking law addressing synthetic or digitally manipulated media. The law has two main components.

First, the law establishes a postmortem right of publicity to protect performers' likenesses— including digitally manipulated likenesses—from unauthorized commercial exploitation for 40 years after death.

Second, the law bans nonconsensual computer-generated pornography (often called deepfake pornography)—highly realistic false images created by artificial intelligence (AI).¹

With this law, New York becomes the first state in the nation to explicitly extend a person's right of publicity to computer-generated likenesses, so-called digital replicas. Professional actors and the Screen Actors Guild (SAG-AFTRA) have pushed for this law for years to protect their likenesses from unauthorized postmortem use, especially as technology has advanced and actors have begun to appear in movies years after their deaths.²

New York also joins four other states that have outlawed certain kinds of deepfakes related either to pornography or to elections. Taken together, these laws, and the roughly 30 bills currently pending or passed in state houses across the country and the US Congress on deepfakes, show that manipulated media is fast becoming a government-regulated field.

1. Extending the Right of Publicity

New York's new law (S5959/A5605C), introduced by Assemblywoman Helene E. Weinstein and State Senator Diane Savino and adopted unanimously,³ is the culmination of three years of effort by New York lawmakers to amend the state's civil rights laws to protect performers' likenesses after their death.⁴

The law establishes essentially two postmortem rights to publicity. First, the law extends a general right of publicity after death to what it terms a "deceased personality"—anyone domiciled in New York State at the time of death whose general likeness "has commercial value at the time of his or her death, or because of his or her death," regardless of whether that person used his or her likeness for commercial purposes during life.⁵ It prohibits the use of such a person's "name, voice, signature, photograph, or likeness, in any manner" for commercial purposes without prior consent of the decedent's heirs or similar assignees.⁶

This right, which extends for 40 years after the death of the deceased personality,⁷ is not enforceable until a successor in interest to the decedent's likeness registers a claim with the New York Secretary of State (a "registration prior to enforcement" requirement similar to federal copyright).⁸

Second, the law bars the use of "a deceased performer's digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work" if that use "is likely to deceive the public into thinking it was authorized" by the rights holder.⁹ Unlike the deceased personality provision, the digital replica section applies only to professional artists and performers: Under the law, a "deceased performer" is a decedent domiciled in New York at the time of death who was "regularly engaged in acting, singing, dancing, or playing a musical instrument."¹⁰

A digital replica is a "newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual."¹¹ The digital "remastering" of sound recordings or audiovisual work does not constitute a digital replica.¹²

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Footnotes

Press Release, Governor Cuomo Signs Legislation Establishing a "Right to Publicity" for Deceased Individuals to Protect Against the Commercial Exploitation of Their Name or Likeness, OFFICE OF GOV. CUOMO (Nov. 30, 2020), https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-establishingright-publicity-deceased-individuals-protect; S5959D (New York), https://www.nysenate.gov/legislation/bills/2019/s5959.

2 See Dave McNary, SAG-AFTRA Commends Gov. Andrew Cuomo for Signing Law Banning 'Deep Fake' Videos, VARIETY (Nov. 30, 2020), https://variety.com/2020/film/news/sag-aftra-commends-andrew-cuomodeep-fake-videos-1234842715/; Matthew F. Ferraro, Deepfake Legislation: A Nationwide Survey—State and Federal Lawmakers Consider Legislation to Regulate Manipulated Media, WILMERHALE CLIENT ALERT 13– 14 (Sept. 25, 2019), https://www.wilmerhale.com/en/insights/client-alerts/20190925-deepfake-legislation-anationwide-survey; Jill Serjeant, James Dean Set to Appear in a Movie Six Decades After His Death, Horrifying Fans, REUTERS (Nov. 6, 2019), https://www.reuters.com/article/us-people-james-dean/jamesdean-set-to-appear-in-a-movie-six-decades-after-his-death-horrifying-fans-idUSKBN1XG34A

3 S5959D (New York) (see "Votes"), https://www.nysenate.gov/legislation/bills/2019/s5959; A5605C (New York) (see "Votes"), https://www.nysenate.gov/legislation/bills/2019/a5605/amendment/c.

4 S5959D (New York), https://www.nysenate.gov/legislation/bills/2019/s5959 (the New York legislature considered but did not adopt similar bills previously in 2017 (S5857/A8155) and in 2018 (DS5857B)).

5 N.Y. Civ. Rights § 50-f(1)(b) (as amended by S5959D).

6 N.Y. Civ. Rights § 50-f(2)(a) (as amended by S5959D).

7 N.Y. Civ. Rights § 50-f(2)(8) (as amended by S5959D).

8 N.Y. Civ. Rights § 50-f(7) (as amended by S5959D).

9 N.Y. Civ. Rights § 50-f(2)(b) (as amended by S5959D) (emphasis added)

10 N.Y. Civ. Rights § 50-f(1)(a) (as amended by S5959D).

11 N.Y. Civ. Rights § 50-f(1)(c) (as amended by S5959D).

12 N.Y. Civ. Rights § 50-f(1)(c) (as amended by S5959D).

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