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- Referred to codes
- Referred to codes
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Sponsor's memo
BILL NUMBER:S2999
Title of bill
An act amended the civil rights law, in relation to prohibiting the use of the name, portrait and/or picture of a deceased personality
Summary of provisions
Adds a new section 50-f to the Civil Rights Law, to create a post-mortem right of publicity, which prohibits any person, firm or corporation form using for advertising purposes or for purposes of trade, the persona of any deceased personality without having first obtained the written consent of heirs who have registered their claim of rights. The terms "for advertising purposes or for the purposes of trade" are meant to be applied and interpreted in the same manner as applied and interpreted in case law construing sections fifty and fifty-one of this article. "Persona" is defined as the name (legal and/or professional), portrait, voice and/or picture of a natural person, and "Deceased personality" means any natural person whose persona is of commercial value or was so prior to death, and who died a domiciliary of New York on or after, or within 70 years prior to, the effective date of the bill. A large part of the remainder of the bill deals with exceptions:
Read the full memo (1,119 words)
* There are no restrictions on use of a deceased personality's persona after 70 years after death.
* There is no liability for actions or conduct involving the use of a deceased personality's persona that occurred prior to the effective date of this section.
* The creator, author, or successor in interest of a portrait or pictures (including a photograph, audio visual image) which are their property retain inviolate all rights and title, however held, including the right to license, sublicense, assign, transfer, sell, or otherwise dispose of such rights and title, and any other right, power or interest which they possessed prior to the effective date of this section. In addition, they are not responsible in any transaction for any requirements to obtain permissions with respect to licensure, which are the responsibility of a third party entity. Nor are they required to obtain permission for the use of their portraits or pictures for any of the following: use on any paper products, including without limitation calendars, posters, greeting cards, napkins, and other similar products; use of the portrait or picture on novelty and souvenir products; use on tee shirts, where the portrait or picture is on the tee-shirt itself and not attached to a hangtag or label, or where the use of the image constitutes a constitutionally-protected expression.
* Any play, book, story, article, magazine, newspaper, newsletter, other periodical, graphic novel, musical composition, sound recording, documentary, motion picture or television program or other audiovisual work, radio or other audio program, original work of art, art reproduction or other work derived from such work, calendar, game, work of political or newsworthy value, informational work, or any other
editorial, artistic or other expressive work, regardless of length or format, or any advertisement, promotion or commercial announcement for any such work, in all cases in any medium now known or hereafter devised, is not be considered to have used a deceased personality's persona for advertising purposes or for the purposes of trade, so long as the work is not being used as a purely commercial advertisement or endorsement.
* This section shall not prohibit the use of a deceased personality's persona in promotional material or an advertisement for an aggregator of news reporting and/or entertainment content that (a) uses all or a part of the content of any news medium or entertainment medium available to the aggregator's customers; and (b) does not conveyor reasonably suggest that the deceased personality endorses the news and/or entertainment aggregator. The term "aggregator" is a party which receives content not of its own creation from others which it transmits or otherwise provides to others.
* Nothing in this section shall be construed in a manner that violates the freedom of speech provisions contained in the United States or New York Constitutions.
* Nothing prohibits use of a deceased personality's persona to accurately identify that person as the author of or contributor to a work or a performer of a recorded performance, under circumstances in which the work or recorded performance is otherwise lawfully reproduced, exhibited, or broadcast.
* A provider of any medium now known or hereafter devised who transmits content which violates this section shall not be subject to remedies under this section, if such provider is not the creator of such content. A deceased personality's persona is declared to be personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument, whether such contract, trust or testamentary instrument is entered into or executed before or after the effective date of this section, by the deceased personality or by any subsequent owner of the deceased personality's persona as recognized by this section.
The transfer of rights of made consistent with State ETPL. Written consents are exercisable by the persons who collectively own more than 50% of the rights in the deceased personality's persona, and reliance upon such written consent provided by those who have registered a claim of rights under subdivision 15 hereof shall be a complete defense in any action brought under this section.
No successor in interest to the rights of a deceased personality under this section or a licensee may recover damages for a use that occurs before the successor in interest or licensee registers a claim of the rights under this subdivision. The registry will be in the department of State, and the cost of registration will be $100. As soon as possible, the secretary of state is to put the records on the internet, on the department's website, in a searchable form.
The remedies for violations are limited to those specified in section fifty-one of this article, and the rights are not exercisable unless
registered with the commissioner of education. Any action to enforce this section shall be subject to the one-year limitations period set forth in section 215.3 of the New York Civil Practice Law and Rules.
Justification
This bill provides a continuing protection to the images of deceased persons, where there is commercial value in them. Every effort has been made to balance the needs of heirs and estates to honor and preserve Such individuals, with constitutional first amendment provisions and with an understanding that in many cases economic arrangements have been made by various parties.
Prior legislative history
S.6005-A of 2008, Codes
Fiscal implications
None to the State. Eventually there may be a charge for the creation of the registry.
Effective date
This act shall take effect on the first January next succeeding date on which it shall become a law.
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