Prohibits using the persona of a deceased personality

Summary of provisions

The bill would add new section 50-f to the civil Rights Law to create a postmortem right of publicity, which prohibits any person, firm or corporation from using the "persona" of any "deceased personality" for purposes of advertising or trade without having obtained the written consent of the person or persons who have registered their claim of rights in accordance with the provisions of this bill. The provisions of the bill would:

* Create definitions of "persona" and "deceased personality." "Persona" is defined to mean the name, including legal and professional name, portrait, voice, and/or picture of a natural person. "Deceased personality" is defined to mean any natural person who died a domiciliary of the state of New York on or after, or within seventy years prior to, the effective date of this bill, and whose persona is or was of commercial value prior to his or her death;

* Specify that any prohibitions contained in the bill would expire 70 years after the death of such personality;

* Except from the purview of the deceased personality's persona the use of such persona in connection with political, artistic or informational works, so long as such work is not being used as a commercial advertisement, endorsement or solicitation;

* Except from the purview of the deceased personality's persona the use of such persona to identify such personality as the author of or contributor to a work or a performer of a recorded performance;

* Exempt from liability actions or conduct involving the use of a deceased personality's persona that occurred prior to the effective date of the bill;

* Recognize a deceased personality's persona as personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument;

* Require a successor in interest to the rights of a deceased personality to register a verified claim with the secretary of state before such successor can recover damages under the bill; and

* Impose a one-year statute of limitations for actions brought under this bill.

Justification

This bill would extend the narrowly-defined New York "right of publicity" to a personality's estate for 70 years following death. It would protect a deceased personality's image against unauthorized commercial exploitation, yet would do so in a way that is fully consistent with the First Amendment.

The bill would advance at least two important values. First, a personality has a legitimate dignitary concern over his or her public perception. It may be deeply disturbing to many personalities to learn that the reputation and image that they had earned during life is subject to unauthorized commercial appropriation and exploitation in ways that might profoundly alter a reputation built on a lifetime of effort. For example, a personality who spends a lifetime seeking to preserve the environment might be deeply troubled to learn that, after death, his or her recognizable image could be freely commercially appropriated and exploited by companies engaged in environmentally destructive activities.

Second, a personality's image, viewed as the sum of talents and attributes, is a form of property. Where a third person seeks to profit commercially by the unauthorized commercial exploitation of such property, the resulting transaction may be viewed as a polite form of theft.

The bill strikes an important balance between a personality's private interest in the protection or exploitation of image and the free transmission of ideas and information protected by the First Amendment. In particular, the bill does so by excepting from the purview of the deceased personality's persona political, artistic or informational works, so long as such work is not used as a purely commercial advertisement, solicitation or endorsement. The bill also places a time limitation on the enforcement of the prohibitions in the bill, having them expire 70 years following the death of the personality.

Legislative history

This is a new bill.

Fiscal implications

Undetermined.

Effective date

The bill would take effect one year after it shall have become a law.