What's happening
This bill expands and clarifies New York's right of privacy and establishes a transferable right of publicity, protecting individuals' personas for 40 years after death.
Why it matters
Expands and clarifies who controls a person’s image, voice, and likeness after death. The bill creates a property right called the "right of publicity" that lasts for 40 years after someone dies, allowing heirs or designated successors to control and profit from uses of the deceased’s persona—including in digital formats—and to transfer or license these rights much like other forms of property.
Establishes a registration system and public record for post-mortem rights. Successors must register their claim to a deceased individual’s right of publicity with the Secretary of State to enforce these rights, creating transparency and a clear process for determining who is authorized to grant licenses or bring legal actions.
Sets boundaries on the use of digital replicas. The bill specifically addresses the use of computer-generated likenesses and voices (digital replicas), making unauthorized use for performances or commercial purposes a violation, but also protecting parody, satire, news, commentary, and certain creative or incidental uses, striking a balance between protecting individuals and enabling artistic expression.
Broadens potential liability and available remedies. The law now allows for damages for violations regardless of whether the use was for profit, clarifies that group uses don’t avoid liability, and provides for both compensatory and exemplary damages. It also sets a one-year statute of limitations from discovery of the violation for right of publicity claims, which is important for both claimants and potential defendants.
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Who cares
Headline styles
Protect Privacy and Publicity Rights
Plain English, a few words. Used as the page title.
Sponsors
History
- Print number 5857b
- Amend (t) and recommit to judiciary
- Referred to judiciary
- Committed to rules
- Amended on third reading (t) 5857a
- Advanced to third reading
- 2nd report cal.
- 1st report cal.1131
- Referred to judiciary
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Protect Name and Image Rights
In Senate Committee · Rules · Sponsor Joseph Morelle
Full text
7 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
5857--B Cal. No. 1131
2017-2018 Regular Sessions
IN SENATE
May 3, 2017
Introduced by Sens. SAVINO, AKSHAR, ALCANTARA, AVELLA, CROCI, HAMILTON -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- reported favorably from said committee, ordered to first and second report, ordered to a third reading, amended and ordered reprinted, retaining its place in the order of third reading -- recommitted to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee
AN ACT to amend the civil rights law, in relation to the right of privacy and the right of publicity; and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity
The People of the State of New York, represented in Senate and Assembly, do enact as follows:
Section 1. Section 50 of the civil rights law is renumbered section 50-f and a new section 50 is added to read as follows:
§ 50. Definitions. For the purposes of sections fifty-f, fifty-g, fifty-h, fifty-i and fifty-one of this article, the following terms shall have the following meanings:
1. "Deceased individual" means any individual, including his or her persona, who has died.
2. "Digital replica" means a computer-generated or electronic reproduction of a living or deceased individual's likeness or voice that realistically depicts the likeness or voice of the individual being portrayed. A digital replica is included within an individual's portrait.
3. "Secretary" means the secretary of state.
4. "Fund-raising" means an organized activity to solicit donations of money or other goods or services from persons or entities by an organization, company or public entity.
5. "Individual" means a natural person, living or dead.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11325-06-8
S. 5857--B 2
6. "Name" means the actual or assumed name, or nickname, of a living or deceased individual that identifies that individual.
7. "Person" means any natural person, firm, association, partnership, corporation, company, syndicate, receiver, common law trust, conservator, statutory trust, or any other entity by whatever name known or however organized, formed or created, and includes not-for-profit corporations, associations, educational and religious institutions, political parties, and community, civic or other organizations.
8. "Persona" means, individually or collectively, the name, portrait or picture, voice, or signature of an individual.
9. "Right of privacy" means a personal right, which protects against the unauthorized use of a living individual's name, portrait or picture, voice, or signature for advertising purposes or purposes of trade without written consent, extinguished upon death.
10. "Right of publicity" means an independent property right, derived from and independent of the right of privacy, which protects the unauthorized use of a living or deceased individual's name, portrait or picture, voice, or signature for advertising purposes or purposes of trade without written consent.
11. "Signature" means a handwritten or otherwise legally binding form of an individual's name, written or authorized by that individual, which distinguishes the individual from all other individuals.
§ 2. Section 50-f of the civil rights law, as renumbered by section one of this act, is amended to read as follows:
§ 50-f. Right of privacy and right of publicity. [A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.] 1. For the purposes of the right of privacy, a living individual's persona shall not be used for advertising purposes or purposes of trade without obtaining the written consent of such person, or if a minor of his or her parent or guardian.
2. For the purposes of the right of publicity, a living or deceased individual's persona is 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 was entered into or executed before or after the effective date of this subdivision. Such right of publicity shall not be used for advertising purposes or the purposes of trade without obtaining the written consent of the individual, his or her successors or assigns as provided for in the provisions of this article pertaining to the right of publicity. In the case of a minor, written consent must first be obtained of his or her parent or guardian for the purposes of an exclusive or non-exclusive license as limited by section 35.03 of the arts and cultural affairs law. A parent or guardian is prohibited from assigning a minor's right of publicity, and such assignments shall be unenforceable. Nothing in this section shall limit any other rights such minor may have.
§ 3. The civil rights law is amended by adding three new sections 50-g, 50-h and 50-i to read as follows:
§ 50-g. Duration of an individual's right of publicity. Every individual's right of publicity shall continue to exist for forty years after his or her death, and does not expire upon the death of the individual.
§ 50-h. Methods of transfer and conveyance. 1. The rights recognized under the provisions of this article pertaining to the right of public-
S. 5857--B 3
ity are freely transferable and descendible, in whole or in part, by the following:
(a) contract;
(b) license;
(c) gift;
(d) trust;
(e) testamentary document. The rights shall vest in the persons entitled to the right of publicity under the testamentary instrument of the deceased individual effective as of the date of that individual's death. In the absence of an express transfer in a testamentary instrument of the deceased individual's right of publicity, a provision in the testamentary instrument that provides for the disposition of the residue of the deceased individual's assets shall be effective to transfer the rights recognized under this article in accordance with the terms of that provision; and
(f) intestate succession. The right to publicity of an individual dying intestate shall be distributed under the laws of intestate succession, and the rights and remedies of this article may be exercised and enforced by a person or persons who possess at least a fifty-one percent interest of the individual's right of publicity. Such persons shall make a proportional accounting to, and shall act at all times in good faith with respect to, any other person in whom the rights being enforced have vested.
2. The rights established by the provisions of this article pertaining to the right of publicity shall also be freely transferable or descendible by any subsequent owner of the deceased individual's right to publicity as recognized by this article. Nothing in the provisions of this article pertaining to the right of publicity shall be construed to render invalid or unenforceable any contract entered into by a deceased individual during his or her lifetime by which the deceased individual assigned the rights, in whole or in part, to use his or her right of publicity as defined in this article.
3. If any deceased individual does not transfer his or her rights under this section by contract, license, gift, trust or testamentary document, and there are no surviving persons as described in paragraph (f) of subdivision one of this section, then the property rights associated with the deceased individual's right of publicity shall terminate.
4. Any person claiming to be a successor in interest to the right of publicity of a deceased individual under this article or a licensee of a deceased individual's right of publicity shall register that claim with the secretary on a form prescribed by the secretary and upon payment of a fee of one hundred dollars. The form shall include the name and date of death of the deceased individual, the name and address of the claimant, the basis of the claim, and a sworn affidavit under penalty of perjury as to the rights claimed. Claims registered under this registry and information regarding such successors in interest to the deceased individual's right of publicity shall be public records.
5. Upon receipt and after filing of any document pursuant to this section, the secretary shall post the document along with the entire registry of persons claiming to be successors in interest to the deceased individual's right of publicity or a registered licensee under this section upon an internet website developed by the secretary for such purpose. The secretary may reproduce by digital or other means any of the filings or documents and destroy the original filing or document.
S. 5857--B 4
6. The secretary is authorized to promulgate such regulations as he or she shall deem necessary to implement the provisions of subdivisions four and five of this section.
7. No action shall be brought under the provisions of this article pertaining to the right of publicity by reason of any use of a deceased individual's right of publicity occurring after the expiration of the duration of the right of publicity as provided in section fifty-g of this article. Furthermore, no action may be brought under the provisions of this article pertaining to the right of publicity for a violation of a deceased individual's right of publicity unless the claim is registered. However, an action may be brought under the provisions of this article pertaining to the right of publicity for a violation of a deceased individual's right of publicity:
(a) for any violation that occurs prior to registration provided the claim is registered within six months following the individual's death; or
(b) for any subsequent publication, manufacturing, distribution, or sale or use in violation of a deceased individual's right of publicity once a claim has been registered.
8. If there is a right of publicity registration for a deceased individual, any person seeking to license the right of publicity for the individual shall have the right to rely upon such registration and posting and thereby presume that the person who has registered and posted his or her claim on the secretary's public internet website has the right to assign or license the deceased individual's right of publicity. The registration and posting of a person's claim to a deceased individual's right of publicity on the secretary's public internet website shall constitute a defense to an action brought under the provisions of this article pertaining to the right of publicity.
9. Any person who knowingly makes a false or fraudulent representation in connection with a registration with the secretary to establish a claim to a deceased individual's right of publicity pursuant to this section shall be liable for any damages sustained as a result of the false or fraudulent registration as determined by a court of competent jurisdiction.
10. Any document filed with the secretary, whether such document is a reproduction or an original, may be destroyed by the secretary fortyseven years after the death of the individual whose right of publicity has been registered therein. The secretary shall remove any document registered and posted upon the public internet website upon showing of a court order from a court of competent jurisdiction that a person claiming to be a successor in interest to a deceased individual's right of publicity has wrongfully registered such claim.
§ 50-i. No abrogation of rights and remedies. Nothing contained in the provisions of this article related to the right of publicity shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal or state law.
§ 4. Section 51 of the civil rights law, as amended by chapter 674 of the laws of 1995, is amended to read as follows:
§ 51. Action for injunction and for damages. 1. Applicability. The provisions of this article related to the right or privacy and the right of publicity apply to an act or event that occurs within New York.
2. Right of publicity exceptions. For purposes of the right of publicity, consent for use of another individual's persona shall not be required, except as otherwise provided in subdivisions three and four of this section, when used in connection with the following:
S. 5857--B 5
(a) news, public affairs or sports broadcast, including the promotion of and advertising for a public affairs or sports broadcast, an account of public interest or a political campaign;
(b) in:
(i) a play, book, magazine, newspaper, musical composition, visual work, work of art, audiovisual work, radio or television program if it is fictional or nonfictional entertainment, or a dramatic, literary or musical work;
(ii) a work of political, public interest or newsworthy value including a comment, criticism, parody, satire or a transformative creation of a work of authorship; or
(iii) an advertisement or commercial announcement for any of the works described in paragraph (a) of this subdivision or this paragraph; or
(c) fundraising purposes by not-for-profit radio and television stations licensed by the federal communications commission of the United States, or by not-for-profit advocacy organizations if the use is for commentary or criticism;
(d) use of the right of publicity of a deceased individual where the licensee or successor in interest has failed to register and post a claim of right under section fifty-h of this article, with the exception of the safe harbor period listed in subdivision seven of section fifty-h of this article, until such time as a claim of right has been registered and posted as required under such section.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
Title of bill
An act to amend the civil rights law, in relation to the right of priva- cy and the right of publicity; and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity
Purpose of bill
To create a right of publicity for deceased individuals and a registry to publicly post such interests upon thereby giving notice to people who may seek to use an individual's right of publicity in New York State for advertising purposes, or for the purposes of trade. In addition this bill addresses the ability of technology to create digital avatars and makes regulations regarding their use.
Summary of provisions
§ .50. Definitions. For the purposes of sections fifty-f, fifty-g, fifty-h, fifty-i and fifty one of this article, the following terms are defined:
Read the full memo (1,351 words)
1. "Deceased individual"
2. "Digital replica"
3. "Secretary"
4. "Fund-raising"
5. "Individual"
6. "Name"
7. "Person"
8. "Persona"
9. "Right of privacy"
10. "Right of publicity"
11. "Signature"
§ 50-f. Right of publicity for living and deceased individuals. Creates a right of publicity for individuals, whether living or deceased, for actions that occur within New York State. This legislation establishes that a living or deceased individual's persona, is 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 was entered into or executed before or after the effective date. An individual's right of publicity cannot be used for advertising purposes or purposes of trade without obtaining the written consent of the individual, his or her successors or assigns, or in the case of a minor, of his or her parent or guardian as limited by
section 35.03 of the Arts and Cultural Affairs Law. Furthermore, a parent may not assign a child's Right of Publicity.
§ 50-g. Duration of an individual's right of publicity. Establishes that an individual's right of publicity continues to exist for forty years after their death.
§ 50-h. Methods of transfer and conveyance. Establishes the ways that an individual's right of publicity may be transferred, including by contract, license, gift, trust, will, testamentary. instrument or intes- tacy. After an individual dies, the person who is his or her successor in interest with an ownership of fifty one percent or more of the decedent's right of publicity may register such interest with the New York State secretary of state for a fee of $100.00. Unless the right of publicity is registered within six months of the individual's death there is no protection against the use of a deceased individual's right of publicity. After forty years have passed, the deceased individual's right of publicity is no longer protected against use in advertising and trade. After forty seven years have passed the secretary of state may destroy all information related to the lapsed right of publicity.
§ 50-i. No abrogation of rights and remedies. States that nothing contained in the provisions of this article related to the right of publicity shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal or state law.
§ 51. Action for injunction and for damages. Subparagraph one determines that this legislation applies to any act that occurs in New York State. Subparagraph two discusses when consent for use of another individual's right of publicity as provided in the provisions of this Article pertaining to the right of publicity shall not be required with a few limited exception.
Subparagraph three discusses the use of digital replicas for purposes of trade in an expressive work and limited immunities for such use. Subparagraph four discusses the use of digital replicas in pornographic work without the consent of the individual. Subparagraph five discusses the limited immunity for certain people unless it is established that the owners or employees had knowledge of the unauthorized use.
Subparagraph six, action for injunction or damages, states that if an individual's right of publicity is used within this state for advertis- ing purposes, or for the purposes of trade without written consent the individual is entitled to maintain an equitable action for violation of the individual's right of privacy or right of publicity. In addition, 'to prevent and restrain the use thereof; an individual may also sue and recover damages for any injuries sustained, including an amount equal to the greater of seven hundred fifty dollars ($750) or compensatory damages by reason of such use and if the defendant shall have knowingly used such person's right of publicity the finder of fact, in its discretion, may award exemplary damages.
Subparagraph seven clarifies that when using more than one person's persona it is still a violation under the right of privacy or the right of publicity if the necessary written permission is not obtained prior to such use.
Subparagraphs eight, nine, ten and eleven are updated and modernized and made easier to understand.
Subparagraph twelve discusses the termination of the post mortem right of publicity.
Subparagraph thirteen discusses the statute of limitations which is one year.
Section five amends the civil practice law and rules. Section six is the severability clause.
Section seven is the effective date, on the one hundred and eightieth day after becoming a law.
Justification
The term "Right of Publicity" originated in the United States Court of Appeals for the Second Circuit in 1953 in Haelan Laboratories v. Topps Chewing Gum to describe the right of individuals to control the use of their name and likenesses for commercial and other valuable purposes. Since then, more than half of the states have granted rights of public- ity to individuals through either the common law or by statute.
The Right of Publicity refers to every individual's inherent right to control the commercial use of his or her personal characteristics, which can include name, portrait or picture, voice or signature, each a part of an individual's persona. Recently, in Lohann v. Take Two (Lohan v Take-Two Interactive Software, Inc. 2018 NY Slip Op 02208 Decided on March 29, 2018 Court of Appeals Fahey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.), the Court stated that "A computer generated image may constitute a "portrait" within the meaning of N.Y. Civ. Rights Law 50 and 51, but the disputed images in the video game central to this matter were not recognizable as Lindsay Lohan, and therefore, Lohan's complaint was properly dismissed."
The most critical function of the Right of Publicity is control. The Right of Publicity, even though it is a property right, is not merely a property asset, like a painting or real estate, for estate tax purposes. The Right of Publicity ensures that if a person, or that person's successor in interest, does not seek to commercialize the right, they are not compelled to do so.
This bill provides for a post mortem right of publicity for forty years after the death of an individual, allowing successors in interest to provide notice of such interest through a public registration and post- ing maintained by the New York Secretary of State. Along with providing for a post mortem right of publicity the bill also has exclusions consistent with constitutionally protected freedom of speech.
Finally, the Right of Publicity created through this legislation applies to acts that occur within New York State.
In conclusion, this bill is balanced in protecting essential first amendment rights consistent with current law while maintaining the current status of the right of privacy law and still providing protections for an individual's right of publicity, whether they are a child or an adult, during life and for forty years after death.
Legislative history
2017 - died on 3rd Rdg. in both Houses.
Fiscal implications for state and local governments
To be determined.
Effective date
This act shall take place on the one hundred and 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.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.