New York’s New Post-Mortem Right of Publicity Law Comes Into Effect, Part 2 (Guest Blog Post)
by guest blogger Tyler Ochoa
On May 29, 2021, New York’s new post-mortem right of publicity law came into effect. The law is codified at N.Y. Civil Rights Law § 50-f. It provides for a post-mortem right of publicity for a “deceased personality” or a “deceased performer” for a period of 40 years after the person’s death. Because New York did not have any post-mortem right of publicity before the enactment of this statute in November 2020, this is a very big deal. However, there is a catch buried in an uncodified section of the enacted bill that severely limits the application of the new statute: it only applies to celebrities who die on or after the effective date. In other words, performers and personalities who are already deceased remain in the public domain for purposes of New York law.
(In the interests of full disclosure: in 2017. 2018, and 2019, I signed statements prepared by the Motion Picture Association of America (MPAA) opposing previous version of this bill. I was not asked to sign such a statement in 2020; and to my knowledge, the MPAA did not oppose passage of the amended bill in 2020. I do not have any inside information, but I believe that the lack of retroactivity, excluding previously deceased celebrities from the protection of the statute, was an important part of the compromise that led the MPAA to accept the amended bill.)
This is the second of a two-part series on the new law. In my prior post, I explained the development of existing law and previous controversies concerning post-mortem rights of publicity. If you aren’t familiar with the topic, I encourage you to read that first before reading this post. In this post, I’ll do a statutory analysis.
Analysis: New York’s New Post-Mortem Right of Publicity Statute
New York’s new post-mortem right of publicity law is codified at N.Y. Civil Rights Law § 50-f. The most important feature of the new statute is that it does not amend or repeal New York’s existing statutory right of privacy for living persons. Subsection 10 provides that “The provisions of this section are in addition to, but shall not supersede, any other rights or remedies available in law or equity.” Thus, the new statute leaves intact the existing New York statute for living persons and all of the case law interpreting it, and supplements it with the new statute for deceased people.
Subsection 2 of new § 50-f has two actionable prohibitions: one that protects a “deceased personality” and one that protects a “deceased performer.”
The Basic Right
Subsection 2(a) provides:
Any person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof.
This language is word-for-word identical to California’s post-mortem right of publicity statute, Civil Code § 3344.1(a)(1), so it will not be surprising if the New York courts turn to California case law when interpreting it. (By contrast, California’s right of publicity statute for living persons, Civil Code § 3344(a), requires that the use be made “knowingly.”) A “deceased personality” is defined in subsection (1)(b) as
any deceased natural person domiciled in this state at the time of death 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, whether or not during the lifetime of that natural person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.
Again, this definition is nearly identical with the one in California’s post-mortem statute [Civil Code § 3344.1(h)], except for the addition of the two clauses in italics above. Here we come to the first important limitation in New York’s statute: it only applies to people “domiciled in this state at the time of death.” Thus, New York is not recognizing a post-mortem right of publicity for celebrities who are domiciled elsewhere at the time of death. Although California’s statute contains no such limitation, California’s choice of law statute, Civil Code § 946, has similarly been interpreted to “require application of the law of the decedent’s domicile” in post-mortem right of publicity cases. See Cairns v. Franklin Mint Co., 292 F.3d 1139, 1146 (9th Cir. 2002).
The clause “whether or not [used] during the lifetime of that natural person” is included to make it absolutely clear that the statute rejects the handful of common-law cases that required such exploitation during one’s lifetime as a condition of having a post-mortem right of publicity. Those cases were based on the concept that a trademark must be “used” in order to create and retain any rights in the mark. Eventually, however, courts and legislatures alike rejected the notion that one’s name and likeness needed to be “used” for a right of publicity to exist.
Subsection 2(d)(i) excludes expressive works from the scope of the basic right:
it shall not be a violation of paragraph a of this subdivision if the work is a play, book, magazine, newspaper, or other literary work; musical work or composition; work of art or other visual work; work of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; audio or audiovisual work, radio or television program, if it is fictional or nonfictional entertainment; or an advertisement or commercial announcement for any of the foregoing works.
This limitation is similar to, but broader than, the corresponding section in California’s post-mortem statute. [Cal. Civ. Code § 3344.1(a)(2)] Specifically, the New York statute adds “or other literary work,” adds “or other visual work,” adds works with “public interest [or] educational” value, adds “audio or audiovisual work,” specifically mentions “comment, criticism, parody or satire,” and removes the limitation that only a “single and original” work of art is protected.
Subsection 2(d)(iii) provides: “it shall not be a violation of this section if the use of a name, voice, signature, photograph, or likeness occurs in connection with any news, public affairs, or sports program or account, regardless of format, medium or means of transmission, or any political campaign.” This subsection is nearly identical to the corresponding sections in the two California statutes, with the addition of the phrase “regardless of format, medium or means of transmission.” [Cal. Civ. Code §3344(d), § 3344.1(j)] But this subsection also seems a bit redundant: it is difficult to imagine any “news, public affairs, or sports program or account” or “any political campaign” that is not already covered by the subsection 2(d)(i) exclusion for a “work of political, public interest, educational or newsworthy value.” But the same redundancy exists in the California post-mortem statute as well. Perhaps the intent here is to avoid any inquiry into the value of the “program or account” or “campaign.” Undoubtedly the exclusions could have been drafted more efficiently; but it is difficult to complain that the exclusions are overbroad.
Subsection 2(d)(iii) does not expressly apply to the digital replica right discussed in the next section. At first glance, the omission makes sense: the use of digital replicas in political campaigns is problematic, and the statute limits actionable digital replicas to those that are deceptive and lack a prominent disclaimer. On the other hand, the digital replica right only applies to “deceased performers,” so living political figures are not included (this statute will have no impact on deepfakes in campaigns), and deceased political figures are only included if they are also “performers.” Also, subsection 2(d)(iii) is a defense to “this section,” whereas subsection 2(d)(i) is expressly limited to the rights in “paragraph a.” One suspects this is just a case of sloppy drafting; but as we will see, that sloppiness has greater consequences elsewhere in the statute.
The second prohibition, in subsection 2(b), is narrower:
Any person who uses a deceased performer’s digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work shall be liable for any damages sustained by the person or persons injured as a result thereof if the use occurs without prior consent from the person or persons in subdivision four of this section, if the use is likely to deceive the public into thinking it was authorized by the person or persons specified in subdivision four of this section.
This prohibition is the first of its kind in the nation; it does not have any counterpart in the law of any other state. It has five elements: a deceased performer, a digital replica, two prohibited uses, without consent, and a likelihood of deception.
A “deceased performer” is defined in subsection 1(a) as: “a deceased natural person domiciled in this state at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.” Like the basic right, this prohibition also applies only to people “domiciled in this state at the time of death.” New York is not recognizing any rights for performers who are domiciled elsewhere at the time of death. The definition overlaps considerably with that of a “deceased personality,” but they are not identical: the “deceased performer” does not have to have any kind of commercial value, but they do have to have been paid. (I would interpret “gain” to require pecuniary or monetary gain, or perhaps an exchange of goods or services in kind; I am confident that “gain” will not include any emotional or psychic well-being that one obtains from performing.) Notably, most athletes are not included in the definition of “deceased performer,” but dancers are. (I imagine paid cheerleaders would fall within the definition, as would street dancers and musicians who “pass the hat” to solicit cash donations.)
A “digital replica” is defined in subsection 1(c) as:
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.
Digital replicas, also known as “deepfakes,” are often created using machine learning, by scanning a person’s prior performances and analyzing them to create a digital model of their facial features and vocal inflections, and then applying that digital model to new content. Sometimes “motion capture” technology is used on a live person to get the basic movements of the performance, to which the digital model is then applied. For examples of digital replicas, see these videos featuring deepfakes of former President Barack Obama (1, 2).
(The statute defines a “sound recording” in subsection 1(d); the definition is identical to the definition in the federal Copyright Act [17 U.S.C. § 101]. The statute does not define an “audiovisual work,” but it seems reasonable to assume that courts may and will borrow the definition of that term from the federal Copyright Act as well.)
The definition of “digital replica” also excludes certain material:
A digital replica does not include the electronic reproduction, computer generated or other digital remastering of an expressive sound recording or audiovisual work consisting of an individual’s original or recorded performance, nor the making or duplication of another recording that consists entirely of the independent fixation of other sounds, even if such sounds imitate or simulate the voice of the individual.
The latter exclusion helps avoid a conflict with (and certain preemption by) the federal Copyright Act, which expressly permits such “sound-alike” recordings. [17 U.S.C. § 114(b)]
The statute only prohibits two uses of “digital replicas”: “in a scripted audiovisual work as a fictional character or for the live performance of a musical work.” It is unfortunate that this subsection contains a possible ambiguity: must the “live performance of a musical work” be embedded “in a scripted audiovisual work” or not? Given that one of the earliest examples of deepfake technology was a hologram of Michael Jackson performing at the Billboard Music Awards in 2014, the best interpretation is that the limitation “in a scripted audiovisual work” only applies to the use “as a fictional character.” But the ambiguity could have been avoided by switching the order of the two uses or by setting the second use off with paired commas.
But why is the second use limited to a “live” performance of a musical work? Again, this was probably done to avoid a conflict with the federal Copyright Act, which expressly allows “sound-alike” recordings that “consist entirely of the independent fixation of other sounds.” (Query whether a digital model created by an artificial intelligence trained with actual recordings is an “independent fixation of other sounds.”) Also, why is the first use limited to a “scripted” audiovisual work? Artificial intelligence can also be used to create improvised interactive dialogue. Note also that use of a digital replica as a “nonfictional” character is permitted.
Finally, the digital replica prohibitions require a likelihood of deception. This limitation is so important that it was included twice: once in the definition of “digital replica” (“so realistic that a reasonable observer would believe it is a performance by the individual being portrayed”) and once in the prohibition itself (“if the use is likely to deceive the public into thinking it was authorized by the person or persons specified in subdivision four”). This limitation was probably included to avoid a conflict with the First Amendment. Subsection 2(b), however, provides an easy out for the replica user: a prominent disclaimer:
A use shall not be considered likely to deceive the public into thinking it was authorized by the person or persons specified … if the person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized by the person or persons specified ….
One imagines there will be litigation over how “conspicuous” the disclaimer must be; but it is also possible that a custom and practice will develop that will satisfy most prospective plaintiffs.
Subsection 2(d)(ii) excludes a somewhat more limited list of expressive works from the scope of the digital replica right:
it shall not be a violation of paragraph b of this subdivision if the work is of parody, satire, commentary, or criticism; works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization; a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization, except in a live performance of a musical work; de minimis or incidental; or an advertisement or commercial announcement for any of the foregoing works.
Since the digital replica right is limited to simulated “performances,” the omission of literary works and works of art is of no consequence. It is difficult to understand, however, why works of “public interest [or] educational” value are omitted from the list; but the examples given are broad enough to include most such works within the meaning of the word “newsworthy.”
Duration of the Post-Mortem Rights
Under subsection 8, “[a]n action shall not be brought under this section by reason of any use of a deceased personality’s name, voice, signature, photograph, or likeness occurring after the expiration of forty years after the death of the deceased personality.” No explanation is given why the term of protection was set at 40 years after death. The term seems midway in between Virginia (20 years after death) and California (70 years after death).
The language of subsection 8 expressly applies only to the basic right of a “deceased personality” and not to the prohibition against using a “digital replica” of a “deceased performer.” One imagines that a court will infer, using the canon of expressio unius est exclusio alterius (expression of one thing implies exclusion of other similar things), that the 40-year term limit does not apply to deceased performers, with the result that the digital replica prohibition is perpetual. Indeed, given that the digital replica right is limited to deceptive uses that lack a prominent disclaimer, that is an entirely plausible interpretation.
That interpretation would be persuasive, however, except for one salient fact: the terms “deceased performer” and “digital replica” are also omitted from almost every other subsection in the statute after subsection 2, including the sections that specify who owns and can enforce the rights, how the rights are transferred, and how to register the rights. Like subsection 8, subsections 3, 6, and 7 specifically mention only the rights of a “deceased personality” and not the rights of a “deceased performer.” (Subsection 9, however, mentions both.) It is difficult to believe that the Legislature intended that all of these provisions apply only to the basic right of a “deceased personality,” and not to the “digital replica” rights of a “deceased performer.” It seems far more likely that the Legislature drafted the statute only with “deceased personalities” in mind, and that it later added the prohibition concerning “digital replicas” of “deceased performers” without amending the rest of the statute to conform to the addition. This is a serious omission, and it begs for immediate legislative action to clarify which sections do and do not apply also to “deceased performers.”
Absent legislative clarification: the definition of “deceased personality” is broad enough to include any “deceased performer” (the only additional element is the person’s “commercial value”), and a court could read the term “likeness” to include any digital likenesses, including digital replicas, in those subsections where such a reading makes sense. But it is not consistent with the judicial role for a court to use such an expansive reading in some subsections but not in others. Closer examination of the legislative history may reveal a more definitive answer.
The codified statute [N.Y. Civ. Rights L. § 50-f] does not specify whether the statute is retroactive or not. That detail is found in an uncodified section of the enacted bill [S. 05959D]. Section 1 enacts new § 50-f. Section 2 enacts new § 52-c, which prohibits “a sexually explicit depiction of an individual.” (That section is not covered in this blog post.) Section 3 provides: “This act shall take effect on the one hundred eightieth day after it shall have become a law, and shall apply to all living individuals and deceased individuals who died on or after such date.”
The first clause of section 3 is straightforward: the act was signed by Governor Cuomo on November 30, 2020, so it comes into effect on May 29, 2021. It is the second clause that is critical: the new post-mortem rights of publicity are not retroactive. Instead, they apply only to “living individuals and deceased individuals who died or after such date.” The heirs of deceased personalities and performers that died before May 29, 2021, are simply out of luck.
As I mentioned at the outset, I believe that this clause, excluding previously deceased celebrities from the protection of the statute, was an important part of the compromise that led the MPAA to accept the amended bill. Under the act, studios can continue to exploit previously deceased celebrities that appeared in their motion pictures all they want. From now on, they will have to get licenses from the living performers who appears in their movies and television shows; but because of statutory and common-law rights of publicity in other states, they have already been doing that for many decades now. The rights of previously deceased celebrities who were domiciled in New York at the time of death, such as Marilyn Monroe, will continue to remain in the public domain as a matter of state law. (Be careful, however, about federal copyrights and trademarks owned by the estates and licensees of previously deceased celebrities.)
In addition to the three specific limitations mentioned above, subsection 2(d) contains one additional defense, and subsection 9 contains another.
Subsection 2(d)(iv) provides:
it shall not be a violation of this section if the use is of a name, voice, signature, photograph, or likeness in a commercial medium solely because the material containing the use is commercially sponsored or contains paid advertising or product placement, or includes within it a use in connection with a product, article of merchandise, good, or service. Rather, it shall be a question of fact whether or not the use of the deceased personality’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising or product placement as to constitute a use for which consent is required under this subdivision.
In other words, the fact that newspapers and magazines contain print ads, and that radio and television shows contains commercials and product placement, does not by itself make the use actionable as one made “for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services.” [Subsection 2(a)] Beginning with the word “solely,” subsection (d)(iv) is nearly identical to the corresponding section in the California statute [Cal. Civ. Code § 3344.1(k)], except that 2(d)(iv) includes “or product placement” in two places, and it adds the phrase “or includes within it a use in connection with a product, article of merchandise, good, or service.”
Subsection 2(e) contains an exclusion from the subsection 2(d) exemption:
In relation to a violation of paragraph a of this subdivision, if a work that is protected under paragraph d of this subdivision includes within it a use in connection with a product, article of merchandise, good, or service, this use shall not be exempt under paragraph d of this subdivision, notwithstanding the unprotected use’s inclusion in a work otherwise exempt under paragraph d of this subdivision, if the claimant proves that this use is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases of that product, article of merchandise, good, or service by the deceased personality without prior consent for the use under paragraph a of this subdivision from the person or persons specified in subdivision four of this section.
Subsection 2(e) is directed toward “product placement” within an expressive work. But subsection 2(d) already takes product placement into account, and it states that the degree of connection between the deceased personality and the product placement “shall be a question of fact.” What does subsection 2(e) add to that? Both subsections provide that the use must be “directly connected” with the product to be actionable. Subsection 2(e) adds the “claimant” has the burden of proof on this issue, which is a welcome clarification. Other than that, however, this section seems entirely redundant of subsection 2(d).
Subsection 2(e) is nearly identical with the corresponding subsection in the California statute. [Cal. Civ. Code § 3344 (a)(3)] But in California, the “product placement” exception is separate from the provision regarding other paid advertising, and it specifically applies to the exemption for expressive works. In New York, the “product placement” exception is repeated in the provision regarding other paid advertising, and it only applies to the subsection 2(d)(iv) exemption for works containing paid advertising, rather than to the subsection 2(d)(i) exemption for all expressive works. In other words, in California the two subsections overlap but are not completely redundant. In New York, they appear to be almost completely redundant (except perhaps for the burden of proof). Moreover, even though subsection 2(d)(iv) exempts certain uses from “this section,” and not just from “paragraph a,” it only expressly addresses the basic right and not the digital replica right. Offhand, I cannot think of a fact situation where the distinction will make a difference in the legal outcome; but it is another example of sloppy drafting.
Subsection 9 provides a defense for owners and employees of the medium of distribution:
Nothing in this section shall apply to the owners or employees of any medium used for advertising, including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit advertisements, by whom any advertisement or solicitation in violation of this section is published or disseminated, unless it is established that the owners or employees had actual knowledge by prior notification of the unauthorized use of the deceased performer’s digital replica or deceased personality’s name, voice, signature, photograph, or likeness as prohibited by this section.
Again, this subsection is virtually identical to the corresponding subsection in the California statute [Cal. Civ. Code § 3344.1(l)], which was enacted in the 1990s. The phrase “including, but not limited to” covers owners and employees of media that did not exist at that time, such as streaming services.
If a violation is found, subsection 2(c)(i) provides for “the greater of two thousand dollars or the compensatory damages suffered by the injured party or parties, and any profits from the unauthorized use” that do not overlap compensatory damages. Given the placement of the comma, it would be a stretch to find that the statute was ambiguous; the $2000 is an alternative to compensatory damages only, and profits may be awarded in addition to either measure of damages. (Mathematically, it means ($2000 or CD) + P, rather than $2000 or (CD + P).) This is notable because it is different from the federal Copyright Act, which makes statutory damages an alternative to the sum of damages and profits. [17 U.S.C. § 504(a)] This subsection is identical to the corresponding section of the California post-mortem statute [Cal. Civ. Code § 3344.1(a)(1)], except that the statutory damages have been increased from $750 in California to $2000 in New York.
Subsection 2(c)(ii) allocates the burden of proof: “in establishing profits under this subdivision, the injured party or parties shall be required to present proof only of the gross revenue attributable to the unauthorized use, and the person who violated this section is required to prove his or her deductible expenses.” This burden-shifting mechanism is also used in the California statute, as well as the federal Copyright Act .[17 U.S.C. § 504(b)] It works well for merchandising cases (or sales of infringing copies); it works very poorly for indirect profits, where a person’s likeness (or an infringing work) is used to advertise the sale of a product that is not itself infringing. How much of the profit from the sale of a non-infringing article should be attributed to an infringing advertisement? In my view, the proper comparison is how much profit would have been made with a non-infringing advertisement, rather than how much profit would have been made with no advertisement at all.
Finally, subsection 2(c)(iii) allows for the recovery of punitive damages. This remedy is also provided for in the California statute. (By contrast, punitive damages are not available for copyright infringement; but the statutory damages for copyright infringement are potentially much larger, up to $30,000, and they can be increased up to $150,000 for willful infringements. [17 U.S.C. § 504(c)])
Ownership and Registration
Subsections 3 through 7 of the new statute govern ownership of the post-mortem rights. Four of the subsections are nearly identical with California’s post mortem statute; but unlike California, the subsection on intestate succession relies on New York’s default provisions rather than specifying particular heirs.
Subsection 3 provides that “The rights recognized under this section are property rights, freely transferable or descendible, in whole or in part, by contract, license, gift, or by means of any trust or any other testamentary instrument.” As Professor Rothman has argued, the assignability of the right of publicity is problematic; it allows large corporations to become the “owner” of the right and to enforce it against the celebrity’s or family’s own wishes.
Subsection 4 provides that consent shall be obtained from the person or persons to whom the right has been transferred under subsection 3, or by the person or persons who obtain it by intestate succession under subsection 5.
Subsection 5 provides that if there is no transfer during one’s lifetime or by will upon one’s death, then the right shall pass by the laws of intestate succession. When that occurs, the right may be exercised and enforced by those persons holding at least a 51% interest, with a duty to make an accounting to the minority owners. (One ambiguity: does this imply that when there are joint owners under subsection 3, the consent under subsection 4 must be unanimous? Or does it simply reiterate what would otherwise be the default rule applicable to joint owners under subsection 3?) Subsection 6 provides that if there is no assignment and there are no heirs, the right terminates.
Subsection 7 provides that an owner or licensee can register with the New York Secretary of State, who must post all such claims of ownership on a publicly available website. A successor in interest or licensee “shall not have a cause of action for a use prohibited by this section that occurs before the successor in interest or licensee registers a claim of the rights.”
Subsection 10 provides that “The provisions of this section are in addition to, but shall not supersede, any other rights or remedies available in law or equity.” As noted above, New York does not have a common-law right of publicity for either living persons or deceased persons. Thus, the new statute leaves intact the existing New York right of publicity statute for living persons, and merely supplements it with the new statute for deceased ones.
Subsection 11 provides:
This section shall apply to the adjudication of liability and the imposition of any damages or other remedies in cases in which the liability, damages, and other remedies arise from acts occurring directly in this state. For purposes of this section, acts giving rise to liability shall be limited to the use, on or in products, merchandise, goods, or services, or the advertising or selling, or soliciting purchases of, products, merchandise, goods, or services prohibited by this section.
This subsection is identical to the corresponding provision in the California statute. [Cal. Civ. Code § 3344.1(n)] In Cairns v. Franklin Mint Co., 292 F.3d 1139, 1146 (9th Cir. 2002), the plaintiff (Lord Simon Cairns, executor of the estate of Diana, Princess of Wales) argued that this section was a choice-of-law clause, meaning that California law applied regardless of the domicile of the decedent. The Ninth Circuit disagreed, noting that the California Legislature had expressly rejected an amendment that would have made California law applicable regardless of the domicile of the decedent. Instead, the Ninth Circuit held that California’s default choice-of-law statute, Civil Code § 946, “required application of the law of the decedent’s domicile” in post-mortem right of publicity cases. Since Diana was domiciled in England at the time of her death, and England does not recognize a post-mortem right of publicity, the claims of her estate were dismissed.
As noted above, the New York statute only applies to a “deceased personality” or “deceased performer” who was domiciled in New York at the time of his or her death. Thus, the argument that subsection 11 is a choice-of-law clause would make little sense for plaintiffs. Instead, the first sentence merely limits the scope of the statute, so that it does not have any extraterritorial application. The second sentence is more problematic: if taken literally, it would nullify the digital replica right, except in cases of advertising. Again, this appears to be a consequence of sloppy drafting: when the digital replica right was added to previous versions of the bill, no one checked to see how it interacted with the other provisions. I would expect a court to hold that the second sentence only applies to the basic right in subsection 2(a).
Finally, subsection 12 provides: “Nothing in this section shall be construed to limit, or to enlarge, the protections that 47 U.S.C. § 230 confers on an interactive computer service for content provided by another information content provider, as such terms are defined in 47 U.S.C. § 230.” This subsection is entirely unnecessary. Under the Supremacy Clause of the U.S. Constitution, art. VI, § 2, New York has no power to “limit … the protections” that a federal statute confers, even if it wanted to. When federal law and state law conflict, federal law is supreme and state law is preempted. New York could provide more protection for an “interactive computer service” if it wanted to, but nothing in the new statute does that. Why someone thought this section was necessary is beyond me, but it does no harm.
Although the enactment of a post-mortem right of publicity in New York is momentous, the statute itself is of limited applicability. It only applies to deceased personalities and performers who were domiciled in New York at the time of their deaths. It does not apply to previously deceased personalities and performers, but only to those who die on or after its effective date: May 29, 2021. The basic right applies only to advertising and merchandising uses, and not to any expressive works; and its term of 40 years after the person’s death is moderate in comparison with other states. Finally, the digital replica right only applies to those digital replicas that are deceptive and lack a conspicuous disclaimer. Overall, the new law is more balanced and limited than previous proposed versions of the statute.
The digital replica right breaks new ground. The biggest ambiguity is whether the 40-year post-mortem term also applies to the digital replica right or not. Otherwise, the similarity of many of the sections of the new statute to California’s post-mortem right of publicity is striking. One imagines that California case law interpreting its statute will be considered as persuasive authority in New York.
One struggles to find evidence that the previous lack of a post-mortem right of publicity in New York has caused any substantial harm to its residents. Advertisements featuring dead celebrities already violated false endorsement laws or the laws of other states. The main effect will be on the market for merchandise featuring dead celebrities; but because the statute does not apply to previously deceased celebrities, it will take a while for the impact on that market to be felt. When it is felt, prices for celebrity merchandise are likely to rise. But while it was lobbied for as benefitting the heirs of dead celebrities, most of the benefit will go to large corporations that were savvy enough to negotiate assignments or licenses during the celebrities’ lifetimes.
Celebrities ought to go into the public domain when they die. But even if it has little public benefit, the enactment of a post-mortem right of publicity in New York will likely do little, if any, additional harm.
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