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New York Right of Publicity Bill Passage Drama Ends With No Action by State Senate

By Judy Bass
Chair, Right of Publicity Bill Subcommittee
Member, EASL Executive Committee

A controversial New York right of publicity bill came very close to being enacted by the New York State legislature last week. The New York State Assembly passed the bill (A. 8155-B) by a vote of 131-9 on Monday night, June 18, 2018. The question then was whether the New York State Senate would vote on the companion bill (S.5857-B) before the legislative session ended on Wednesday, June 20th. The Senate adjourned, however, at 1:30 a.m. Thursday morning without taking up the bill. The bills would have dramatically modified New York Civil Right Law, Sections 50 and 51, which currently provide only for a right of privacy under New York law, not a descendible right of publicity as has been enacted in certain other states.

SAG-AFTRA led the effort to enact the legislation. After passage of the bill by the New York State Assembly, SAG-AFTRA posted on its website a statement saying the following: "Today's historic vote supports an incredibly important 34-year campaign by the performance community giving families the right to prevent unwanted commercial exploitation of their deceased loved ones. A.8155-B better protects individuals from unwanted image and voice manipulation and unauthorized advertisements, while prohibiting deepfake pornography, and clarifying the digital replica rights of entertainers. The bill extends rights to survivors 40 years past death."

The SAG-AFTRA statement went on to say that the proposed bill protects performers while "maintaining the free speech rights afforded to the media and content creators." https://www.sagaftra.org/sag-aftra-statement-passing-new-york-assembly-bill-a8155-b.

A large contingent of the media community, however, strongly disagrees with that assessment. Statements in opposition to the Assembly and Senate bills were submitted by a wide range of organizations and companies, including the Motion Picture Association of America (MPAA), Getty Images, the New York State Broadcasters Association, the Electronic Frontier Foundation, the Digital Media Licensing Association, the Entertainment Software Association, the Media Coalition, Disney, Warner Bros. Entertainment, and Viacom.

Professor Jennifer Rothman of Loyola Law School, an expert on the right of publicity, on her blog post opposing the amended version of the bill introduced in early June, strongly criticized the "ill-thought-out right of publicity bill" being pushed through the Assembly without allowing for hearings and public debate. She further stated that the bill "jeopardizes a vast array of creative works and biographical works" and grants a "windfall to heirs of dead celebrities without ever justifying why they should receive one at the expense of the public." She also called out the "estate tax danger that can force the commercialization of the dead against both their and their families' wishes", and that the bill "opens the doors of New York courts to all plaintiffs regardless of their domicile." She concluded by saying the following: "New York need not revise its current law which is working just fine. Nevertheless, if New York State wishes to extend postmortem protection and to address concerns over the use of digital avatars to replace actors, it should propose distinct, narrower, and more carefully drafted statutes to address these issues." https://www.rightofpublicityroadmap.com/news-commentary/new-york-right-publicity-bill-resurrected-again.

The New York State Bar Association Committee on Media Law, chaired by Sandra Baron, submitted a detailed report on the bill, including a history of the current right of privacy in New York. It noted that New York Civil Rights Law Sections 50 and 51, on the books since 1903, "have been strictly construed in New York, favoring the right to freely publish about persons based on State Constitutional and First Amendment principles and only restricting the publication in clear cases where the use of the personality's image or likeness is for purposes of advertising or trade." It urged the state legislature not to make wholesale changes to the law "without significant public input" and to amend the current law only "with careful weighing of the costs to this historical legal structure." The report was approved by New York State Bar Association and submitted to the New York State legislature last week. It is available here (Media Memo #3): https://www.nysba.org/CustomTemplates/SecondaryStandard.aspx?id=73536.

It is not known whether the bills will be re-introduced next fall. If so, we should urge our state legislators in both houses to conduct a more open and complete discussion of the issues and evaluation of the impact of the legislation, including public hearings, and to implement additional necessary changes before moving forward again on this controversial legislation.

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