NEW YORK PASSES EXTENSION OF "RIGHT OF PUBLICITY" LAW TO DECEASED PERSONS

September 15, 2020

New York Governor Andrew Cuomo is expected to sign a bill enacting new posthumous protections against the unauthorized use of a deceased person’s name, voice, likeness or performance for advertising or commercial purposes.

The bill, establishing a New York “Right of Publicity,” has long been advocated for by actors groups including SAG to protect the likenesses of deceased persons of notoriety.

Currently, at least 24 states have specific laws on the books protecting a living person’s Right of Publicity. That includes New York, which offers protections under NY Civil Rights Law §50 and §51. That protection is continued and is unchanged.

The new legislation protects the rights of the estate and heirs of a persons who dies as a domiciliary of New York, to exploit or not to exploit the names, likenesses, voice and images of the deceased for 40 years after death. While that is the key takeaway in the new legislation, there are other important provisions.

• Currently, every living resident of New York is protected against commercial exploitation of his or her name and image without consent. The expanded legislation extends similar protection to persons whose name, voice and signature has commercial value at the time of his or her death or, and this is important, “because of their death.” This could come into play, for example, in the case of a murder victim who became a public figure by reason of his or her death. Under the expanded law, if that victim was a resident of New York, his or her Right of Publicity would be protected.
• The expanded protections include clearly defined exceptions, including use of a person’s name, picture or voice for newsworthy and educational purposes as well as for “comment, criticism, parody or satire.”
• The law will only apply to those New Yorkers who die 180 days after the law is signed into effect. There is no retroactive protection for the Right of Publicity of persons who have died or die before the effective date.
• Before a publicity claim can be made, the representative of the deceased must also register with the New York Secretary of State. 

There are additional nuances to these new rules; this is simply an overview. Additional coverage areas include protecting against the dissemination or publication of sexually explicit depictions of an individual, and protections against deceiving the public into believing a dead person previously authorized the use of his or her name, likeness or performance.

The bottom line is this: New York lagged behind when it came to extending these protections to individuals posthumously. The updated law, once signed by the governor, will offer much-needed protections to not only the deceased, but protection and income to the estates and heirs of deceased personalities and performers.

In addition to the financial loss the estate of a deceased person can suffer through unauthorized use of his or her name and likeness, too often families see a loved one’s name and likeness used in a commercial manner that did not align with the deceased’s core values and beliefs. The New York legislature has finally provided tools that can help put a stop to that.

Les Greenbaum is an experienced attorney who focuses his practice in the areas of trademark, copyright, entertainment, art and sports law, unfair competition and related litigation. He can be reached at Gross Shuman P.C. by calling 716-854-4300 ext. 230 or lgreenbaum@gross-shuman.com.