On November 30, 2020, New York Governor Andrew Cuomo signed legislation¹ that protects individuals from unwanted and unauthorized post-mortem commercial exploitation and digital replicas. The new law also strictly prohibits “deepfakes” -- the publication and dissemination of digitally created, nonconsensual, sexually explicit material.

These new post-mortem rights of publicity and digital replica provisions only will apply to those who died on or after the May 29, 2021 effective date.

I. Rights of Publicity:

Generally, a “right of publicity” is the legal recognition of a property right inherent in the commercial value of a person's identity, often encompassing an individual’s image and likeness. Under statute or common law, certain states recognize rights of publicity which prevent others from unauthorized uses of an individual's identity to promote goods and services.² In these states, permission must be granted in order to use an individual’s name, voice or likeness for a commercial purpose.

Prior to the enactment of the new legislation, New York recognized the right of publicity as part of the right of privacy embodied in two sections of New York's right of privacy statute.³ Significantly, until the new law was signed, New York’s right of privacy statute only protected living persons.⁴

Unlike the state’s existing right of publicity laws for living individuals, which apply to celebrities and non-celebrities alike, New York’s new post-mortem law will only protect a person’s rights of publicity that have commercial value at the time of their death, or resulting from their death.⁵ These post-mortem rights of publicity are defined as the individual’s “name, voice, signature, photograph or likeness.”⁶

This new post-mortem right of publicity extends 40 years after the “deceased performer’s” death, if the decedent was domiciled in New York at the time of death. The right is expressly transferable and descendible under the new legislation, so that the protected rights may be fully transferred by contract, license, trust, will or other instrument. The legislation also establishes a system by which a decedent’s successors in interest must register the claimed right with New York's Secretary of State to be able to bring an action for use of the deceased individual’s rights, similar to the Secretary of State’s “Successor-in-Interest” list in California.⁷ In New York, the right of publicity may be exercised by a decedent’s estate as well as a person who inherited or owns at least 51% of the rights.

This new right of publicity is not absolute. The First Amendment provides a general defense against right of publicity claims based on countervailing free speech rights, which in turn may protect certain expressive works such as books, plays, musical compositions, radio and television programs that incorporate a celebrity’s personal identification. Along those lines, the new New York State law contains an explicit exemption for certain expressive works if they are “fictional or nonfictional entertainment” or “an advertisement or commercial announcement” for such work.⁸ Moreover, the expressive works exemption includes newsworthy and educational events, as well as for "comment, criticism, parody or satire."⁹ These potential free speech rights narrow the new post-mortem right of publicity in New York.

II. Digital Replicas:

As technology advances, so does the potential for digital replicas, which are purposefully realistic duplicates of an individual’s face, body or voice. Digital replicas include, among other things, the use of a hologram. A well-known example of an unauthorized digital replica is the hologram projecting the likeness of Tupac Shakur at the Coachella Valley Music and Arts Annual Festival in 2012, six years after the rapper’s death.¹⁰

The New York legislation defines digital replicas as “newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, originally expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that reasonable observer would believe it is a performance by the individual being portrayed and no other individual.”¹¹ The law now prohibits the use of a “digital replica” of a person without his or her consent in any kind of performance.

The provisions protecting against the use of digital replicas of deceased performers include a requirement that the use be likely to deceive the public into thinking that it was authorized by the deceased individual or his successors. Notably, other protections for the right of publicity do not contain any such requirement.  

III. Deepfakes:

“Deepfake” technology uses artificial intelligence to realistically superimpose individuals into video, audio and text material. Most commonly, and in the New York law, the term “deepfakes” refers to the practice of integrating the images of individuals into pornographic content without consent.¹²   

New York’s new legislative protections against “deepfakes” are limited to acts that the individual did not actually perform or those that were altered. The law creates a private right of action and victims of “deepfakes” may be entitled to injunctive relief, punitive damages, compensatory damages and reasonable court costs and attorney fees.¹³

IV. Practical Implications:

For advertisers, marketers and brands, the risk of litigation is tempered by the prospective nature of the new legislation. Without retroactive applicability, Marilyn Monroe’s estate, for example, could not bring an action based on an alleged right of publicity violation.¹⁴ Nevertheless, the new law presents potential risks for the unsuspecting.

To avoid interruption of an advertising or publicity campaign and the distraction and cost of litigation, advertisers, marketers and brands should assume that evoking the name, voice or likeness of a New Yorker, living or deceased, requires prior permission. They also should carefully examine the facts and context, and consider potential work-arounds. In addition, advertisers who utilize social media platforms should be cautious about using the name, image or likeness of any deceased person with arguable celebrity status in posts without his or her estate’s permission if such use could be viewed as an endorsement of the advertiser’s products and services.

It also is critical to consider the national landscape of laws that create rights similar to those now applicable to New Yorkers. With the signing of this new legislation, there are now 25 states that recognize post-mortem rights of publicity. Further complicating matters, it is not always obvious which state is the domicile of a deceased person -- the Marilyn Monroe cases being an example. 

For estates of well-known personalities or performers who pass away after the effective date of the legislation, the New York law provides potentially significant opportunities for monetization. It ensures that a commercially valuable name and likeness receives protection from unauthorized uses for commercial gains and entitles the estate to a portion of the sales proceeds of any items that portray that person’s image.¹⁵ Separate from potential monetary relief for unauthorized uses, New York’s new law affords the estate of a deceased person negotiating power in future marketing campaigns.

1. S 5959D/A5605C. ↩
2. There is no federal protection for the right of publicity. ↩
3. N.Y. Civ. Rights Law §§ 50 and 51. New York does not recognize a common law right of publicity. Stephano v. News Grp. Publ'ns, Inc., 485 N.Y.S.2d 220, 224 (1984). ↩
4. N.Y. Civ. Rights Law § 50; see James v. Delilah Films, Inc., 544 N.Y.S.2d 447, 451 (Sup. Ct. N.Y. Co. 1989) (not recognizing any post-mortem rights). ↩
5. S 5959D/A5605C, Sec. 50-f(1)(b). ↩
6. Id. ↩
7. https://specialfilings.sos.ca.gov/sii (“In order to recover damages as a successor-in-interest for the authorized use of a deceased personality’s name, voice, signature, or likeness, you first must register your claim as a successor-in-interest with the Secretary of State as required by Civil Code section 3344.1 by filing a Registration of Claim as Successor-In-Interest.”). ↩
8. S 5959D/A5605C, Sec. 50-f(2)(d)(i). ↩
9. Id., Sec. 50-f(2)(d)(ii) and (iii). ↩
10. Jana M. Moser, American Bar Association, Tupac Lives! What Hologram Authors Should Know About Intellectual Property Law (2012), https://www.americanbar.org/groups/business_law/publications/blt/2012/09/02_moser/. ↩
11. S 5959D/A5605C, Sec. 50-f(1)(c). ↩
12. In 2019, California enacted signed legislation to combat “deepfakes.” Assembly Bill 602 targets companies and individuals who create and distribute unauthorized “deepfakes” in California. ↩
13. S 5959D/A5605C, Sec. 50-f(2). ↩
14. See Shaw Family Archives Ltd v. CMG Worldwide, Inc., 486 F. Supp. 2d 309 (S.D.N.Y. 2007) (the Court held that because Marilyn Monroe died before the passage of California’s Celebrity Rights Act in 1985 and because New York does not recognize a post-mortem right of publicity, her name, image and voice were in the public domain in California and New York). California, responding to this case, passed legislation creating a right of publicity that lasts 70 years after death. Cal Civ Code §3344.1. ↩
15. Violations of the right of publicity for living or deceased persons are governed by a one-year statute of limitations. CPLR § 215(3). ↩