Will New York Expand Publicity Rights Law?

by Manatt, Phelps & Phillips, LLP
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Manatt, Phelps & Phillips, LLP

The New York Legislature is weighing a new bill that would expand the state’s publicity rights law—and the Association of National Advertisers (ANA) is pushing back.

Pursuant to the proposed legislation, individuals could bring a private right of action when their “names, voices, signatures and likenesses” are used without their consent, and could transfer the right to their heirs. A name includes a nickname, while a “likeness” is broadly defined to cover “an image, digital replica, photograph, painting, sketching, model, diagram, or other recognizable representation of an individual’s face or body, and includes a characteristic.” A “characteristic” means “a distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.”

For a $50 registration fee, the right would last up to 40 years after death—even if the individual has never lived in New York. Introduced last May, S.5857A is currently pending before the New York State Senate Committee on Judiciary.

The ANA responded with a letter expressing “serious concerns” about “the massive expansion of the scope of the right of publicity” the measure would create.

“As currently drafted, the legislation could cause serious harm to our members in the marketing and advertising community, many of whom are based in New York and the vast majority of whom transact significant amounts of business within the state,” Dan Jaffe, group EVP, government relations for the ANA, wrote to lawmakers.

Unlike the right-of-publicity laws found in other states, the New York proposal has no domicile requirement, allowing an individual to “reach far beyond the confines of the state and even the United States,” the organization said. “This could lead New York courts, which are already over-burdened, to be inundated with claims asserted by those with no connection to New York.”

And that’s not to mention the threat of litigation could chill advertising—and, in turn, business—in the state, the ANA added.

Other problems with the bill: the registry requirement, which is “unclear with respect to who must register and who is exempted from registration,” and the expansive definitions with terms such as “characteristic” and “likeness.”

“These are vague terms that would likely end up as a question of fact for a jury,” Jaffe wrote. “Further, for purposes of the registry, how would a marketer be able to ascertain the ‘characteristic’ or ‘likeness’ of the individual that would be covered? The complications and vagaries of these terms when applied to a post-mortem right and a registry raise serious concerns and uncertainties for marketers.”

As the bill presents “a number of major issues,” it should not be enacted as currently drafted, the ANA recommended.

To read S.5857A, click here.

To read the ANA’s letter, click here.

Why it matters: The ANA is not alone in its objections to the bill. The Electronic Frontier Foundation has spoken against the proposed law as well, characterizing the addition of postmortem rights as “deeply flawed.” The measure remains in committee and has not advanced to the full legislature.

 

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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