By Elizabeth McNamara and Camille Calman
As New York’s legislature struggled to reach the end of its extended 2015 session, a bill proposing a statutory right of publicity for the deceased languished in committee, where it looks destined to die. We view this as a positive development, since the bill represented a significant departure from New York’s longstanding law on the right of publicity, which has always been strictly confined to the living. The bill contains definitions that are so vague as to be unworkable and raises more issues than it solves. We hope that the legislature will not reintroduce this flawed bill in future sessions.
There is no question that dead celebrities sell. Years after their deaths, celebrities appear in advertisements for all manner of products. Frank Sinatra endorses “Jack Daniels Sinatra Selects.” Bob Marley’s face appears on every product from the Marley Beverage Company. Audrey Hepburn danced across the screen for the Gap and appeared in CGI form in a British ad for chocolate bars. Dior resurrected Marilyn Monroe, Grace Kelly, and Marlene Dietrich for a perfume ad, and Monroe’s voice and likeness were featured in ads for Chanel No. 5. Fred Astaire danced with a Dirt Devil vacuum cleaner, and John Wayne advertised Coors beer.
Given the money involved in posthumous endorsements, it’s not surprising that celebrities’ heirs have argued for a posthumous right of publicity. Many states have enacted statutes extending the right of publicity past death. For example, California extends the right of publicity to “deceased personalities,” whose name, voice, signature, photograph, or likeness had commercial value in their lifetime for 70 years after their death. Indiana protects “name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, and mannerisms” during life and for 100 years after death. Tennessee, home of the late Elvis Presley, provides protection indefinitely, as long as the deceased’s publicity rights are still being exploited. In other states, courts have found that the common-law right of publicity survives death.
New York is the residence of countless public personas so that any change in the law here will necessarily have significant impact. The New York bill, S.5650/A.7904, is titled “An act to amend the civil rights law and the civil practice law and rules, in relation to the right of publicity.” It would extend the right of publicity for 70 years after death for anyone- not just those whose persona had, or was exploited for, commercial value during their lives. The bill would create a property right in a deceased individual’s persona, “freely transferable or descendable, 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 article.” Anyone who uses “any aspect” of a deceased individual’s “persona” for commercial purposes would have to obtain prior written consent of the deceased’s heirs. “Persona” is broadly defined to include “name, portrait, picture, voice, signature, photograph, image, likeness or distinctive appearance, gesture, mannerisms or other indicia of a deceased individual.” The statute would apply to anyone who died while domiciled in New York on, after, or within seventy years before the effective date of the statute. The rights granted are explicitly retroactive and are deemed to have existed at the time of death. The statute attempts to grapple with the fact that those already deceased would have been unlikely to leave specific publicity rights in a will, by providing that a bequest of “the residue of the deceased individual’s assets” is sufficient to have transferred the newly-created rights. Id.
New York’s right of publicity has traditionally been strictly defined under Sections 50 and 51 of the New York Civil Rights Law, which prohibits the use “for advertising purposes, or for the purposes of trade” of the name, portrait, picture, or voice of any living person. The Court of Appeals has emphasized that Sections 50 and 51 should be “narrowly construed” and subject to a broad newsworthiness exception Although some New York courts have recognized a “proprietary interest” in a living celebrity’s public personality, Sections 50 and 51 have always been held not to create any assignable or descendible right. The proposed statute would shift the balance dramatically.
The bill’s “Justification” section explains that “New York’s deceased personalities, in many instances, spent entire careers building reputations and bodies of work that are a property right that should not be extinguished with their passing. This property right should also be protected after their passing . . .” Query, however, whether the statute would achieve these goals. The statute’s protection is not limited to persons who “spent entire careers building reputations and bodies of work;” it equally applies to the accidentally famous and the not-famous-at-all. Furthermore, it does nothing to protect the deceased’s “reputations” or “bodies of work”; it merely vests in the deceased’s heirs the right to decide how her persona will be exploited. The heirs may have their own ideas about exploiting their newfound property right, which may have little to do with reputational protection or honoring the deceased’s wishes. Personas would be transferred from the public domain to individual heirs, which would certainly benefit the heirs, but perhaps to the detriment of the public.
The proposed statute would also create broader rights for the dead than the living.
- First, a large body of case law strictly construes the application of Sections 50 and 51 to commercial advertising or trade, while favoring the First Amendment right to use a person’s name and likeness in editorial and creative works.) The new statute recognizes First Amendment rights by including exemptions for works of “political or newsworthy value concerning public interest” and for specifically enumerated creative works such as books, plays, original musical compositions, motion pictures, original works of fine art, and television programs (but, oddly, not radio programs). But the vagueness of some of the terms virtually invites protracted litigation. Who will decide whether a work has “political or newsworthy value concerning public interest,” and isn’t newsworthiness a question of editorial judgment, as New York courts have long held? Who will decide what is or isn’t a “work of fine art”?
- Second, the definition of “persona” in S.5650/A.7904 is broader than the rights protected in Sections 50 and 51. “Persona” includes not only names, likenesses, and voices, but signatures and “distinctive appearance, gesture, mannerisms or other indicia of a deceased individual.” This vague definition is unworkable—how should a court determine whether a “gesture” or “mannerism” is sufficiently distinctive to call to mind a particular deceased individual?
In addition, creators of expressive works about deceased celebrities may be constrained in promoting those works. The creative-works exemption applies only as long as the work does not “constitute an advertisement, endorsement or solicitation for the sale or purchase of a product, article of merchandise, good or services, other than for the work itself.” As the New York State Bar Association Committee on Media Law pointed out when opposing a similarly-worded bill in 2013, a Broadway musical about Marilyn Monroe could use Monroe’s persona artistically, but might face liability for selling merchandise such as posters or t-shirts, which could threaten the economic viability of the production.
And what about dead criminals? Under the bill, their heirs can inherit and exploit their posthumous rights of publicity. How will this interact with New York’s “Son of Sam” law, which prohibits criminals from profiting from their crimes? If a deceased criminal’s heirs inherit and exploit the criminal’s persona, will the crime victims be compensated? Or does the right of publicity descend to the heirs unencumbered by the victims’ “Son of Sam” rights?
Finally, this statute could create a retroactive right of publicity for photographs and videotapes in archives. Photographers who took iconic photos of Marilyn Monroe (and obtained releases from her) have long wrangled with her heirs over who may exploit those photos. Photographers whose life’s work includes photographing celebrities might be challenged in court by heirs who argue that the photographers’ release forms did not assign posthumous rights to exploit the images for commercial purposes—or that a release granted rights to the celebrity’s likeness but not his “gestures” and “mannerisms” since statutory rights to those traits vest only in the heirs, not the living celebrity.
Ultimately, S.5650/A.7904 would remove from the public domain the personas of anyone who dies while domiciled in New York, and bestow their personas on their heirs. But as drafted, the statute would extend the right of publicity far beyond the limited publicity right of Sections 50 and 51 (the only such right that New York courts recognize). It would almost inevitably lead to litigation; could have a chilling effect on First Amendment rights; and could raise other, unanticipated problems. We hope the Legislature will not revive this troubling bill in future sessions.
Elizabeth McNamara is a partner in the New York office of Davis Wright Tremaine.Camille Calman is an associate at the firm. Reprinted with permission from the June 30, 2015, edition of the New York Law Journal © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – firstname.lastname@example.org.