New York’s post mortem right-of-publicity statute recently came into effect.  Its previous right-of-publicity laws were an extension of its statutory right of privacy which provided that “any person whose name [or likeness] is used within [New York] for advertising [or trade] purposes without . . . written consent” can sue for an injunction and damages.  Because the statute addressed privacy concerns that dissipated at death, such rights did not extend post mortem.  New York courts have held that because the state’s law affords no common law right of publicity – the statutory grant is exclusive.

New York’s new law brings its treatment of post mortem rights closer to that of California which has had postmortem protection for the right of publicity of celebrities and personalities since 1985.  Under the new law in New York, successors in interest of “personalities” and “performers” who pass away after the statute took effect in May 2021, will have a cause of action for certain forms of unauthorized exploitation.

Those “personalities” granted protection under New York’s new law is someone living in New York at the time of death whose name, voice, signature, photograph, or likeness has commercial value at the time of (or because of) their death. The protection against unauthorized use lasts forty years from the date of death. A “performer” granted protection under New York’s law is someone living in New York at the time of their death and had, regularly acted, sung, danced, or played a musical instrument. The postmortem right attached to a “performer” does not expire.  The statute has a specific prohibition against the unauthorized use of a deceased performer’s “digital replica” and also specifically prohibits unauthorized pornographic deep fakes of both performers and personalities.

Previous attempts to pass a law addressing post mortem protection of rights of publicity failed due to concerns over the First Amendment.  In balancing out these concerns, the statute contains specific allowances for the use of a deceased personality’s name, voice, photograph, or likeness in a play, book, magazine, newspaper, musical work, work of visual art, etc.   Likewise, a deceased performer’s digital replica may be used in parodies, satire, commentary, criticism, works of political or newsworthy value, and the like. News, public affairs, and sports programs are also exempt from the statute.

It is relevant to note that this statute is not retroactive which means that it does nothing to protect the post mortem right of publicity of Marilyn Monroe.   Her estate claimed New York as her legal domicile at the time of her death (despite the fact that she lived in California and California recognized post mortem right of publicity at that time).  When the Monroe Estate attempted to control the use of Ms. Monroe’s image by others, the Ninth Circuit Court of Appeals in Milton Green Archives v. Marilyn Monroe LLC subsequently ruled that the Monroe Estate did not have a valid right of publicity claim.  Had New York’s new law been in place at the time of her death, Ms. Monroe’s estate may have been able to claim enforceable post-mortem rights of publicity.  Without these rights, the Monroe Estate has relied on, and continues to rely on, trademark rights to curb misuses of her name and likeness.

Scott Hervey and Josh Escovedo discuss this topic on The Briefing from the IP Law Blog.

Listen to the podcast episode here.

Watch this episode on the Weintraub YouTube channel here.