The New York State Legislature recently passed a bill that expands the State’s current laws to protect one’s right of publicity after death. Under current privacy laws in NY, permission is required to use a living individual’s name, voice, or likeness for commercial purposes (i.e., in advertising materials).
While the bill – which awaits signature by Governor Andrew Cuomo – will not change the current law in relation to living individuals, it would create a new right of publicity for the deceased, whose publicity rights (e.g., name, likeness, photograph, voice, and signature) have commercial value at the time of their death or because of their death. Such right would be transferable and descendible. For example, it could be exercised by the deceased individual’s estate or an individual who owns or has inherited 51% or more of such rights. Subject to certain enumerated exceptions, the bill would also create liability for the use of “deep fakes” and deceptive use of a deceased performer’s “digital replica” if such use is likely to deceive the public into thinking the use was authorized by the deceased person or its successor (note this last element would only apply to “performers”, which is defined in the bill as a person who lived in NY at the time of death and who was regularly engaged in singing, acting, dancing, or playing a musical instrument). The bill would provide post-mortem rights for forty years after the person’s death.
In order to bring an action under the bill, the deceased must be domiciled in NY at the time of death and must have died at least one hundred and eighty days after the bill becomes law. To file a lawsuit under the bill, the deceased’s estate must register with the Office of the NY Secretary of State. Keep in mind that this right is not retroactive, and therefore, the risk of litigation is likely reduced.
Takeaway: An advertiser should carefully consider the scope of consent it has to use an individual’s publicity rights, including when the individual is deceased. Rights of publicity are protected under state and common law and some, but not all, states provide for a post-mortem right of publicity. However, not every state applies its post-mortem publicity right the same way, so the analysis when determining whether permission is needed to use a deceased person’s publicity rights can be complex. New York’s new bill, if signed by the Governor, would certainly raise new issues (and likely lawsuits) where brands fail to obtain the necessary consent from an estate to use a famous New York celebrity’s publicity rights in advertising where he or she passed away after the New York post-mortem right goes into effect.