New York State Establishes Descendible Right Of Publicity

Tarter Krinsky & Drogin LLP

On December 1, 2020, New York State Governor Andrew Cuomo signed Senate Bill S5959D (the Bill) into law. The Bill adds Section 50-f to the civil rights law, establishing a right of publicity for deceased performers and deceased personalities for 40 years after their death. The new section will be effective on May 31, 2021 and will apply to all such persons who died on or after that date.

When the law becomes effective, New York State will be aligned with the 23 other states in the country that have statutory descendible rights of publicity.

Who is a Performer?

The Bill defines a performer 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.”

Who is a Personality?

The Bill defines a personality as: “A 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.”

Why is this New Law Important?

New York State is an entertainment center and the lack of a post-mortem right of publicity previously hindered entertainers’ rights. The states of California and Tennessee, also entertainment centers in the United States, have enacted such statutes.

The passage of Section 50-f permits the estate of a deceased performer or personality to control the use of the deceased individual’s name, likeness, voice and signature for commercial and other valuable purposes.

This right is crucial to protect the rights of deceased celebrities, actors, musicians, and others whose estates are governed by New York law. Monetary remedies include the greater of $2000 or compensatory damages suffered by the injured party and profits from the unauthorized use that are not included in the compensatory damages. The court also now has discretion to award punitive damages. Section 50-f further establishes a public registration and notice system, maintained by the New York Secretary of State. But be aware, registration of rights is a prerequisite to filing a lawsuit.

Are there Exceptions to Liability?

Yes, the law does provide exceptions for literary and musical works, satires, works of political, educational and public interest, and for public commentary.

Have you Seen a Celebrity’s Image Photoshopped in a Salacious Manner?

The law establishes a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual. Injunctive relief, punitive damages, compensatory damages, attorneys’ fees and court costs are all available remedies.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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