New York’s New Right of Publicity Law: Protecting Performers and Producers
3.17.2021
When New York’s new right of publicity law becomes effective on May 29, 2021, a number of new protections will become codified in New York that will benefit performers and celebrities, as well as their estates.[1] Significantly, however, these changes should not negatively impact the film, television, theater, newspaper and publishing communities, nor the photographers, artists and others working in New York who regularly utilize the images of performers to tell their stories, report the news or otherwise. The balance struck by the law is commendable and a tribute to the drafters and organizations who worked for many years to implement this new law.
The right of publicity bill was passed at the end of July 2020 unanimously in the New York State Senate and with only one dissenting vote in the New York State Assembly. The compromise language in the bill was a result of “years of negotiations primarily between the Motion Picture Association (MTA) and SAG-AFTRA, facilitated by Deputy Senate Majority Leader Mike Gianaris (D-Queens), and with input from news organizations, broadcasters and others.”[2] After passage, the MPA sent a letter to Governor Andrew Cuomo, urging him to sign the bill:
“The Bill that awaits your signature represents the successful culmination of nearly two decades of negotiations between legislators of both parties, MPA, SAG-AFTRA, and numerous other stakeholders in the media, entertainment, and First Amendment communities. As with any legislative compromise, no party got everything it sought. However, we believe that the Bill strikes the right balance in adequately protecting against harmful, unauthorized exploitation of an individual’s name, image, voice, and likeness, while respecting the First Amendment rights of the MPA’s members, news organizations, artists, and others who engage in constitutionally protected speech.”[3]
On the same day that the bill was signed by Governor Cuomo, SAG-AFTRA issued a press release applauding New York for enacting the “milestone” bill.[4] In particular, SAG-AFTRA noted that the bill would help to ensure that “New York’s protection against the use of a living person’s image and voice, including their ‘digital avatar and digital voice’ in advertising and trade, remains firmly intact, and will continue the trend of protecting against uses in expressive works unless the use is clearly permitted by the First Amendment.”[5] The press release went on to say, “The bill, for the first time in 36 years, also prohibits the use of a deceased individual’s voice and image in advertising and for purposes of trade.”[6]
SAG-AFTRA’s decades-long efforts to enact a postmortem right of publicity bill in New York were not in isolation.[7] SAG-AFTRA has characterized these efforts as “an incredibly important 34-year campaign by the performance community giving families the right to prevent unwanted commercial exploitation of their deceased loved ones.”[8] SAG-AFTRA’s Government Affairs Public Policy (GAPP) Committee has targeted working with lawmakers and other “stakeholders” to “modernize laws” to safeguard its members’ image and voice rights in a number of states.[9] Many states currently have a postmortem right of publicity, and there is currently a wide variety of what those laws provide.[10] One of the first such laws was enacted in California in 1999.[11]
Significantly, the new legislation leaves intact New York Civil Rights Law §§ 50 and 51, New York’s longstanding “Right of Privacy” law.[12] Those sections prohibit the use “for advertising purposes, or for the purposes of trade” of the name, portrait or picture of any living person without obtaining his or her prior written consent. Those found to be in violation of § 50 are guilty of a misdemeanor. Under § 51, an equitable action may be maintained against the person, firm or corporation using such person’s name, portrait, picture or voice within the State of New York.
The new legislation adds a new § 50-f to the New York Civil Rights Law entitled “Right of Publicity.”[13] It applies to deceased individuals who die on or after the effective date of the law and who are domiciled in New York State at the time of death. Violations are compensable by damages equal to the greater of $2,000 or the amount of compensatory damages suffered by the injured party, plus profits attributable to such use, and punitive damages. The legislation applies to two categories of deceased persons: “deceased personalities” and “deceased performers.”
Under § 50-f (2)(a), the bill provides for a right of action on behalf of “deceased personalities” for the use of their names, voices, signatures, photographs or likenesses for commercial purposes without consent, i.e., on or in products, merchandise or goods, or for purposes of advertising those goods. A “deceased personality” is defined as a person “whose name, voice, signature, photograph or likeness has commercial value at the time of his or her death or because of his or her death . . .” The right of action extends for 40 years after the death of the deceased personality. Persons claiming to represent the rights of a deceased personality are required to register with the New York Secretary of State before any claim can be made.
Under Section 50-f (2)(b), the bill provides for damages for the use of a “deceased performer’s digital replica” in a “scripted audiovisual work as a fictional character” or in the “live performance of a musical work” without consent when the use “is likely to deceive the public into thinking it was authorized.” A “deceased performer” is defined as a person who “for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.” A “digital replica” is defined as a computer-generated, electronic performance in which the person did not actually perform “that is so realistic that a reasonable observer would believe it is a performance by the individual.” The use will not be considered “likely to deceive” if there is a conspicuous disclaimer provided in the credits of the scripted audiovisual work and any related advertisement saying it has not been authorized. A “digital replica” does not include remastering or reproduction of a sound recording or other audiovisual work.
On the SAG-AFTRA website, there is the following advisory to SAG-AFTRA members:
“Digital Image Rights & Right of Publicity.
“Your image is valuable. Your voice is valuable. Your fan base is valuable. Your performance is valuable . . . . Unfortunately, companies might wish to steal your likeness for merchandise, advertisements, or to produce video games, live concerts, or movies. This denies you the fruit of your hard work and can potentially harm your legacy. Union contracts and state and federal laws, including the right of publicity, give media artists the opportunity to consent to and be compensated for specific uses of a likeness.
“But the current status of the law is antiquated in light of new technologies that enable unprecedented exploitation of your likeness—both during and after your lifetime. The “Right of Publicity” is a state intellectual property right (much like a copyright) vested in you and your heirs in order to protect the right to use your likeness. . . .The right of publicity safeguards meaningful income streams and provides you a certain level of autonomy, financial reward and control in the marketplace.”[14]
A key SAG-AFTRA initiative promoted on the website as well is called “#ProtectMyImage.”[15] This stated desire on the part of SAG-AFTRA to protect its members from misappropriation and unconsented commercialization of their images both “in life and now post mortem” is clearly a key motivation behind SAG-AFTRA’s legislative efforts.[16]
The inclusion in the New York law of a section dealing with the unauthorized use of a deceased performer’s digital replica was very important to SAG-AFTRA. In particular, its website advises members that “digital replicas” are creating “new challenges that existing rules are ill equipped to handle.”[17] “Digital replicas” are described as “intentional, realistic clones—produced by any number of technological means—of an individual’s face, body, or voice.”[18] It provides the following specific examples of potential “digital replica misuse”:
An audio publisher clones an actor’s voice to construct an audiobook narration.
A video game company creates a digital replica of a sports broadcaster to announce a football game.
A hologram company projects a living or deceased musician before a live, paying audience.
An ad agency or brand creates a replica of a deceased performer for a commercial.
A creator uses Deepfake algorithms to depict nonconsenting individuals as nude or performing sex acts in motion pictures.[19]
The new New York law directly addresses the issue of digital replicas, but only of those who are in the category of “deceased performers”; accordingly, digital replicas of live performers are not included in the law’s protections. In addition, the law only addresses a digital replica of a person who “for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.”[20] Digital replicas of deceased persons who were not performers are outside the ambit of the law. To comply with the law, a producer utilizing a digital replica of a “deceased performer” has to provide a “conspicuous disclaimer” in the credits of the scripted audiovisual work and any related advertisement saying that the performance has not been authorized.[21]
Of the examples cited by SAG-AFTRA, the hologram of the deceased musician would be covered, but not of the living musician. In addition, a digital replica of a living actor’s voice in an audiobook narration would likely not run afoul of the law, nor would the digital replica of a sports broadcaster announcing a game. Using a replica of a deceased performer for a television commercial without consent, however, would not be permissible under both this section and §50-f (2)(a).
SAG-AFTRA’s other main concern that was addressed in the legislation is the distribution of digitally created sexually explicit images, sometimes known as “deepfakes,” without clear written approval from the performer depicted. The example noted above of a “deepfake” that depicts nonconsenting individuals in the nude or performing sex acts in motion pictures is governed by the new law and is not limited to deceased individuals. Under a separate section of the new law, § 52-c, a private right of action has been created for “unlawful dissemination or publication of a sexually explicit depiction of an individual.”[22] A “depicted individual” is defined as “an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in a performance that was actually performed by the depicted individual but was subsequently altered” to be in violation of the section. Digitization means to “realistically depict the nude body parts of the depicted individual, computer-generated nude body parts as the nude body parts of the depicted individual, or the depicted individual engaging in sexual conduct . . . in which the depicted individual did not engage.”[23] Damages for dissemination of sexually explicit material include injunctive relief, compensatory and punitive damages and attorney’s fees.
Interestingly, when an earlier version of the New York bill proposed by two lawmakers in 2019 granted “digital rights to their persona” to individuals portrayed in motion pictures, video games, pornographic videos and other media, SAG-AFTRA made some very strong statements criticizing the MPA and the Entertainment Software Association (ESA) for their positions opposing the bill. In a scathing article entitled “Malicious Pornographic Deepfakes Aren’t Just Free Speech,” which first appeared in the New York Daily News on June 18, 2019, the president of SAG-AFTRA declared that the “deepfake technologies” that “use artificial intelligence to turn existing images into fictional live-action performance” are not “just another form of free speech.”[24] The article goes on to say as follows:
“Even when presented with the most abhorrent, indefensible use of digital human technologies, these corporations [the MPA, the ESA and the trans-national media corporations that are their member companies] wrongly invoke the First Amendment, which already has long been balanced against other competing interest(s) like libel, fighting words, fraud, privacy and intellectual property rights, in their efforts to persuade legislators.”[25]
The SAG-AFTRA position appears eventually to have been accepted by the MPA and ESA with certain safeguards built in for the media. In the legislation that has now been enacted, § 52-c provides that the depicted individual has a cause of action against the distributor of the depiction unless the depicted individual has signed an agreement consenting to the disclosure of the depiction; a disclaimer is not sufficient.[26]
Possibly in exchange for these compromises, SAG-AFTRA on its side explicitly acknowledged even in its press release about the passage of the legislation that certain uses of its members’ likenesses are “clearly permitted by the First Amendment.”[27] In addition, on the SAG-AFTRA website, it provides as follows:
“It is important to note that content creators have critical First Amendment rights to use your likeness without permission, such as for the purpose of satire, parody, commentary, criticism, biographical films and documentaries or other newsworthy or educational purposes.”[28]
These statements are at the heart of what makes the new New York right of publicity law acceptable to almost all parties. Indeed, there are explicit so-called “expressive works exceptions” to the prohibited uses in each of the sections of the legislation:
- With respect to the right of action for deceased personalities, pursuant to § 50-f (2)(d)(i), it is not a violation if the use of a deceased personality’s name, voice, signature, photograph or likeness is in a play, book, magazine, newspaper or other literary work, a musical work, art work or other visual work (like photography), or in a work of political, public interest, educational or newsworthy value, including for purposes of comment, criticism, parody or satire, or in an audio or audiovisual work that is fictional or nonfictional entertainment (or an advertisement or commercial announcement of any of the foregoing).[29]
- With respect to the deceased performers’ digital replica right, under § 50-f (2)(d)(ii) it is not a violation if the work is a parody, satire, commentary, criticism, or a work of political or newsworthy value, including a documentary, docudrama, historical or biographical work “regardless of the degree of fictionalization except in a live performance of a musical work.”[30] Notably, the wording referring to “a live performance of a musical work” leaves open the question of whether an unconsented hologram of a deceased performer appearing in a live stage play would run afoul of the law, even if the play would otherwise fall within the exceptions. In § 50-f (2)(d)(iii), the law also specifically provides that it is not a violation if the use of the name or likeness is in connection with a news, public affairs or sports program, or in any political campaign.[31]
- Finally, with respect to the right of action for sexually explicit depictions, under § 52-c(4)(a) there is no liability for disclosure or dissemination of sexually explicit material if such disclosure is (i) in the course of reporting unlawful activity, exercising law enforcement duties, or in hearings, trials or other legal proceedings; or (ii) the material is a “matter of legitimate public concern, a work of political or newsworthy value, or commentary, criticism” or otherwise protected constitutionally, provided that such material is not newsworthy “solely because the depicted individual is a public figure.”[32]
The inclusion of language in the New York right of publicity bill that carves out expressive works is a key strategy and accomplishment of the MPA. Indeed, according to Ben Sheffner, senior vice president and associate general counsel, copyright and legal affairs of the MPA, the language of the first state statute that incorporated a specific statutory exemption for expressive works, the California Post Mortem Statute, California Civil Code 3344.1, was actually negotiated between the MPA and SAG-AFTRA.[33] Sheffner explains what the MPA believes is the best way to protect the ability to tell stories based on or inspired by real people and real events:
“There are various ways, various possibilities. One option is via the courts, to make the best First Amendment arguments you can, and hope the decision comes out in your favor. We do that. But it is our contention that the best way is to return to the statute and have specific carve outs for expressive works, which would include books, movies, television shows, plays, songs, newspaper articles, news broadcasts, et cetera.”[34]
The inclusion of that expressive works language in the New York legislation now becoming law is a key factor in achieving an appropriate balance of the interests of both sides. Sheffner noted in his 2019 article that, by his calculations, “about 47% of the Best Picture nominees over the last five years, were about or inspired by real people and events.”[35] He goes on to say as follows: “Consider what movies would have been threatened if the rule is that you cannot make a movie or TV show about somebody unless you get their permission.”[36] In addition, the alleged falsification and fictionalization of living people in movies and other programming has been asserted by some plaintiffs as violative of § 51 and is an issue that is being dealt with in a variety of court proceedings.[37] With this new legislation, it appears that similar claims on behalf of deceased individuals will have to get past the expressive works exceptions embodying First Amendment protections in the statutory language.
Conclusion
For those who worked for decades to pass right of publicity legislation in New York, there has long been a concern, on the one hand, that many unauthorized uses of performers’ images, such as commercialization after death, creation of digital replicas in movies and other content, and the dissemination of deepfakes throughout the internet, would not be curtailed. On the other hand, there has been a continuing concern on the part of media and entertainment companies that the passage of any postmortem right of publicity would negatively impact and restrict the production of audiovisual and other content and the dissemination of news in New York about real people and events. As a result of some skillful negotiating by the parties in interest, the assistance of committed legislators, and reasonable compromises on both sides, the new New York right of publicity bill should actually mitigate these concerns and prove to be a positive addition to New York’s laws. Even though some parts may need to be tested by the courts, the new law will likely prove to be protective of the commercialization of performers’ image rights after death, limit the use of digital replicas without consent, and stop the abusive practices of creating deepfakes. The new law should also not stand in the way of productions and other content based on or inspired by stories about real people, both living and deceased, continuing to be produced and distributed in New York.
Judith B. Bass is a media and entertainment attorney who concentrates on television and film production and distribution deals, option agreements, author publisher deals, talent representation, rights licensing, book and magazine publishing, digital media, children’s television and animation, licensing and merchandising, and intellectual property matters. She is a member of the Executive Committee of the New York State Bar Association’s Entertainment, Arts & Sports Law Section (EASL), co-chair of EASL’s Committee on Literary Works and Related Rights, and a member of the NYSBA Media Law Committee. She is also a past chair of the Entertainment Law Committee of the New York City Bar Association and a current member of the Copyright and Literary Property Law Committee. She is the co-author of “Digital Publishing: E-Books, Self-Publishing and Other Models,” a chapter in Siegel on Entertainment Law (NYSBA, 2018). This article also appears in a forthcoming issue of EASL Journal, (vol. 32, no. 1), the publication of the EASL Section (WWW.NYSBA.ORG/EASL).
[1]. https://www.nysenate.gov/legislation/bills/2019/s5959.
[2]. Ben Sheffner, New York Enacts Post-Mortem Right of Publicity and Related Legislation, MLRC MediaLawLetter (December 2020), 17. A subcommittee of NYSBA’s Media Law Committee (on which this author served) also provided comments on the bill.
[3]. Letter of September 30, 2020 from Vans Stevenson, Senior Vice President, State Government Affairs, Motion Picture Association, to The Honorable Andrew M. Cuomo, Governor of New York State.
[4]. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra-applauds-new-york-gov-cuomo-signing-right-publicity-protections.
[5]. Id.
[6]. Id. Emphasis added.
[7]. https://www.sagaftra.org/sag-aftra-statement-passing-new-york-assembly-bill-a8155-b/.
[8]. Id.
[9]. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital-image-rights-right-publicity.
[10]. See, e.g., Rothman’s Roadmap to the Right of Publicity, https://www.rightofpublicityroadmap.com.
[11]. Cal. Civ. Code § 3344.1.
[12]. N.Y. Civil Rights Law §§ 50-51 (2014).
[13]. https://www.nysenate.gov/legislation/bills/2019/s5959.
[14]. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital-image-rights-right-publicity.
[15]. Id.
[16]. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra-applauds-new-york-gov-cuomo-signing-right-publicity-protections.
[17]. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital-image-rights-right-publicity.
[18]. Id.
[19]. Id.
[20]. Id.
[21]. Id.
[22]. N.Y. Civil Rights Law § 52-c (S.5959-D/A.5605).
[23]. Id.
[24]. https://www.sagaftra.org/malicious-pornographic-deepfakes-aren’t-just-‘free-speech’.
[25]. Id.
[26]. https://www.nysenate.gov/legislation/bills/2019/s5959.
[27]. SAG-AFTRA Press Release, (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra-applauds-new-york-gov-cuomo-signing-right-publicity-protections.
[28]. https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital-image-rights-right-publicity.
[29]. https://www.nysenate.gov/legislation/bills/2019/s5959.
[30]. Id. Note that a “live stage play” is not included.
[31]. Id.
[32]. Id.
[33]. Ben Sheffner, Why Movie Studios Care About Right of Publicity, 42 Colum. J.L. & Arts 341 (2019).
[34]. Id.
[35]. Id.
[36]. Id.
[37]. See, e.g., Porco v. Lifetime Entertainment Servs., LLC, 147 A.D.3d 1253 (3d Dep’t 2017).
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