United States: New Yorkers Receive Postmortem Rights And Protection Against Digitization Of Sexually Manipulated Content In New Right Of Publicity Statute

New York has protected the rights of living persons to control the use of their name and likeness in commerce for over one hundred years. The existing right to privacy gives any person the right to sue for an injunction or damages if their name or likeness is used within New York for advertising or trade purposes without their written consent. See NY CRL § 51. These privacy rights dissipate at death. But starting in May of this year, New York's new right of publicity statute will grant successors of certain individuals a right of publicity after death. This brings New York's statute closer to that of California, which has recognized postmortem rights since 1985. The statute also grants new rights concerning the use of deepfakes in sexually manipulated content. More on that below.

The postmortem part of the statute protects only certain individuals who die as New York domiciles and only if they die after the statute goes into effect on May 29, 2021 (i.e., no retroactive effect). The rights that are granted last for 40 years after death and can be transferred by contract, license, trust, will, or another instrument. The bill differentiates between "performers" and "personalities."

Personalities include those 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. See § 50-f(1)(b). A deceased personality is protected from the use of his or her "name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of products, merchandise, goods, or services, without prior consent." See CVR § 50-f (2)(a).

Performers include those individuals who regularly engaged in acting, singing, dancing, or playing a musical instrument. See § 50-f (1)(a). A deceased performer is protected from the use of his or her "digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work . . . if the use is likely to deceive the public into thinking it was authorized by the [performer]." See CVR § 50-f(2)(b).

The right of publicity statute contains a number of exemptions, including the following:

• Unauthorized use in certain works will not constitute a violation of the law unless the plaintiff can prove that the work was so directly connected to a commercial purpose (e.g., in connection with a product, merchandise, goods, or services) that it constitutes advertising or solicitation by the deceased individual. The list of what constitutes "certain works" is long and varies for deceased personalities and deceased performers but includes the usual suspects of First Amendment protection, such as literary works, works of political or newsworthy value, parody or satires, and advertisements for such works. See 50-f(2)(d).
• Mere use of a deceased personality's name, voice, signature, photograph, or likeness in a medium that is sponsored or contains advertising does not constitute a violation, unless the use was "so directly connected" with the sponsorship or advertisement. See 50-f(2)(d)(iv). This exemption is vague, but it appears that there will be no violation unless the advertisement suggests that the deceased personality's likeness is being used to endorse the sponsor or advertised product.
• Companies who own advertising media (like billboards) are shielded from liability unless they had "actual knowledge by prior notification" of the unauthorized use. See 50-f(9).
• There is a registration prerequisite for claims filed as a result of the unauthorized use of deceased personalities' names or likenesses. Successors must file their rights with the New York Secretary of State, and there is no "cause of action for a use . . . that occurs before the successor in interest or licensee registers a claim of the rights." See CVR § 50-f (7). This means not only that registration is a prerequisite for filing suit, but that no liability will attach for uses that predate registration, leaving a potential window for exploitation of the deceased personality's likeness in the period between the individual's death and registration. There is no registration available or required to pursue rights for the use of a deceased performer's digital replica.

The new Right of Publicity statute also provides a private cause of action against the dissemination of sexually explicit content that has been manipulated or altered with someone else's face or body parts. This part of the statute (Section 52-c) was drafted in response to an increase in "digitization" of celebrities in sexual content. The term "digitization" is defined as "realistically depict[ing] the nude parts of another human being as the nude body parts of the depicted individual, computer-generated nude body parts as the nude body parts of the depicted individual or the depicted individual engaging in sexual conduct. . . in which the depicted individual did not engage." See CVR 52-c (1)(b). The statute is not limited to "personalities" or "performers" and protects anyone who has been a victim of this type of "digitization." There are also some limited exemptions, including a carveout for First Amendment use and use in connection with law enforcement or court proceedings. Furthermore, the burden to obtain consent is very high and requires a knowing and voluntary written agreement "in plain language that includes a general description of the sexually explicit material and the audiovisual work in which it will be incorporated."  § 52-c(3)(a).

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