New York Gives Life to Post-Mortem Right of Publicity and Deters Deepfakes

On November 30, 2020, Governor Cuomo signed into law two new sections of the New York Civil Rights Law, Sections 50-f and 52-c, both of which became effective May 29, 2021. The new legislation expands upon New York’s current right of privacy laws. Section 50-f recognizes a post-mortem right of publicity in celebrities and performers domiciled in New York State at the time of their death, while Section 52-c provides an expansive private right of action for individuals depicted in sexually explicit deepfakes. Although the two laws serve different purposes, they similarly empower personalities in the entertainment industry with the means to control their images both in life and in death.

Posthumous Right of Publicity

Unlike copyright, patent, and trademark regimes, which enjoy federal protection under the Constitution, the right of publicity leads a separate existence and is governed exclusively by state statute or common law. The right of publicity is generally conceptualized as an in-gross property right whose res may be thought of as the rights holder’s “persona.” As each state is free to choose whether to recognize the right of publicity and define its scope, there are significant variations among the states in interpreting the right of publicity. New York’s newly minted privacy and publicity laws are of special interest to the entertainment community, as New York is a locus of the industry and the domicile of many celebrities.

New York’s New Publicity Law

The new legislation reflects years of negotiations between the Motion Picture Association (“MPA”) and the Screen Actors Guild – American Federation of Television and Radio Artists (“SAG-AFTRA”).¹[1]See Judith B. Bass, New York’s New Right of Publicity Law: Protecting Performers and Producers, New York State Bar Association (Mar. 17, 2021) (discussing the legislative history of § 50-f and SAG-AFTRA’s perspective), https://nysba.org/new-yorks-new-right-of-publicity-law-protecting-performers-and-producers/. Section 50-f strikes a balance between protecting the personas of deceased celebrities from unauthorized commercial uses without imposing an unreasonable burden on creators who desire to use a deceased personality’s name, image, and likeness. In a statement following the passage of the new post-mortem publicity law, SAG-AFTRA commended the New York Legislature, stating “[t]he law protects the images and voices of SAG-AFTRA members and their families, in life and now post mortem, from unwanted and unauthorized commercial exploitation.”²[2]SAG-AFTRA Applauds New York Gov. Cuomo for Signing Right to Publicity Protections, SAG-AFTRA (Nov. 30, 2020), https://www.sagaftra.org/sag-aftra-applauds-new-york-gov-cuomo-signing-right-publicity-protections. The new legislation reflects the ambition behind SAG-AFTRA’s #ProtectMyImage campaign, which empowers celebrities to control the value of their image, voice, fan base, and performance.³[3]Digital Image Rights & Right of Publicity, SAG-AFTRA, https://www.sagaftra.org/get-involved/government-affairs-public-policy/digital-image-rights-right-publicity (last visited May 25, 2021).

New York’s publicity laws stem from New York Civil Rights Law, Article 5 Right of Privacy. Section 50 was enacted in 1909 to codify a state right of privacy. Under Section 50, it is a misdemeanor for a person, firm, or corporation to use for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any living person without the written consent of such person.⁴[4]N.Y. Civ. Rights Law § 50 (McKinney 2021). Relatedly, Section 51 gives any person whose name, portrait, picture, or voice is used for advertising purposes or for the purposes of trade without consent the right to maintain an equitable action for an injunction and damages against the person, firm, or corporation making such use.⁵[5]Id. § 51. Together, Sections 50 and 51 recognized the need to protect a person’s persona and filled the gap in New York’s common law that provided no remedy for commercial exploitation by another of one’s identity and qualities.⁶[6]Booth v. Curtis Pub. Co., 223 N.Y.S.2d 737, 739 (N.Y. App. Div. 1962), aff’d, 11 N.Y.2d 907 (N.Y. 1962).

While Sections 50 and 51 provide a broad right of privacy and means to enforce such right for living persons, Section 50-f provides an exclusive, post-mortem right of publicity to deceased performers and personalities. Under the statute, a “deceased performer” is defined as a deceased natural person domiciled in New York State at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.⁷[7]Civ. Rights Law § 50-f(1)(a). A “deceased personality” refers to any deceased natural person domiciled in New York State at the time of death 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, whether or not during the lifetime of that person the person used his or her name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes of advertising or selling, or solicitation of purchase of, products, merchandise, goods, or services.⁸[8]Id. § 50-f(1)(b).

Substantively, Section 50-f provides for two causes of action. First, a cause of action is available to a deceased personality for the use of the deceased personality’s name, voice, signature, photograph, or likeness, in any manner, for commercial purposes without prior consent.⁹[9]N.Y. Civ. Rights Law § 50-f(2)(a) (McKinney 2021).

The new legislation carves out several “expressive works” exceptions to liability for the claim available to deceased personalities. Specifically, it is not a violation if the use of a deceased personality’s name, voice, signature, photograph, or likeness is in a play, book, magazine, newspaper, or other literary work; musical work or composition; work of art or other visual work; work of political, public interest, educational or newsworthy value, including comment, criticism, parody, or satire; audio or audiovisual work, radio or television program; or an advertisement or commercial announcement for any of the foregoing works.¹⁰[10]Id.§ 50-f(2)(d)(i). Furthermore, there is no liability if the use is in any news, public affairs, sports program, or political campaign.¹¹[11]Id.§ 50-f(2)(d)(iii).

In addition, a commercial sponsorship and advertisement exception exists to limit liability for branded content under the cause of action granted to deceased personalities. It is not a violation if the use is of a name, voice, signature, photograph, or likeness in a commercial medium solely because the material containing the use is commercially sponsored or contains paid advertising or product placement, or includes within it a use in connection with a product, article of merchandise, good, or service.¹²[12]Id. § 50-f(2)(d)(iv). The statute expressly states that it is a question of fact if the use of the deceased personality’s name, voice, signature, photograph, or likeness was so directly related to the commercial sponsorship, paid advertising, or product placement as to constitute a use for which consent is required.¹³[13]Id. This commercial use exception is consistent with New York’s existing precedent under Sections 50 and 51, which provide that the fact that a newspaper, book, or other editorial product is sold for profit does not necessarily transform a protected editorial use into a prohibited commercial use.¹⁴[14]Jesse Feitel et al., Dead Celebrities and Digital Doppelgangers: New York Expands Its Right of Publicity Statute and Tackles Sexually Explicit Deepfakes, Davis Wright Tremaine LLP (Dec. 4, 2020), https://www.dwt.com/insights/2020/12/new-york-post-mortem-right-of-publicity.

Second, a cause of action is available to a deceased performer whose digital replica is used in a scripted audiovisual work as a fictional character or for the live performance of a musical work without prior consent if the use is likely to deceive the public into thinking it was authorized.¹⁵[15]N.Y. Civ. Rights Law § 50-f(2)(b) (McKinney 2021). For purposes of Section 50-f, a “digital replica” is defined as a newly created, original, computer-generated, electronic performance in which the deceased performer did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the deceased performer being portrayed.¹⁶[16]Id. § 50-f(1)(c) The statute provides a workaround for the unauthorized use of a deceased performer’s digital replica, however, as a use will not be considered likely to deceive the public if the person making such use provides a conspicuous disclaimer stating that the use of the digital replica is not authorized.¹⁷[17]Id.§ 50-f(2)(b) This cause of action addresses performers’ concerns over the ease in which technological innovations can make use of their images.

The right of publicity law similarly grants an expressive works exception to liability for the claim available to deceased performers. Under Section 50-f, it is not a violation if the work is of parody, satire, commentary, or criticism; works of political or newsworthy value, or similar works, regardless of the degree of fictionalization; a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization, except in a live performance of a musical work; de minimis or incidental; or an advertisement or commercial announcement for any of the foregoing works.¹⁸[18]Id. § 50-f(2)(d)(ii). In all, the four exceptions promulgated in Section 50-f(2)(d) prevent the new legislation from unduly restricting the First Amendment rights that the general public and content creators have to use a celebrity’s likeness without permission.¹⁹[19]Digital Image Rights & Right of Publicity, supra note 3.

Damages for a claim brought under Section 50-f will equal the greater of $2,000 or the compensatory damages suffered by the injured party because of the unauthorized use, including profits attributable to such use, and punitive damages may also be awarded to the injured party.²⁰[20]N.Y. Civ. Rights Law § 50-f(2)(c) (McKinney 2021). The law explicitly states that the post-mortem publicity rights are property rights that are freely transferable or descendible, by contract, license, gift, trust, or other testamentary instrument.²¹[21]Id. § 50-f(3). To bring a claim under the statute, a person claiming to be a successor in interest to the rights of a deceased personality must first register his or her claim with the New York Secretary of State.²²[22]Id. § 50-f(7).

Why State Differences in Recognizing Post-Mortem Rights Matter: A Case Illustration

While New York’s new publicity laws go a long way in advancing performers’ and personalities’ interests, an argument may be made that Section 50-f does not go far enough. If each state’s right of publicity laws are imagined on a spectrum, then California’s represent the celebrity-friendly extreme.

In Milton H. Greene Archives v. Marilyn Monroe LLC, the divergent approaches of California and New York state law were on full display.²³[23]Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983 (9th Cir. 2012). Here, Marilyn Monroe LLC (“Monroe LLC”) sued Milton Greene Archives, Inc. (“Milton Greene”), claiming ownership of Marilyn Monroe’s right of publicity and alleging that Milton Greene violated Monroe LLC’s rights by using Monroe’s image and likeness for unauthorized commercial purposes.²⁴[24]Id. at 990-991. Milton Greene then sued Monroe LLC for a declaration that Monroe LLC did not own Monroe’s right of publicity.²⁵[25]Id. at 991. The district court ruled in favor of Milton Greene, holding that Monroe LLC did not own Monroe’s right of publicity because the three states involved in the litigation, New York, California, and Indiana, did not recognize a descendible, posthumous right of publicity at the time of Monroe’s death in 1962.²⁶[26]Id. Although California created a descendible, posthumous right of publicity in 1984 with the passage of California Civil Code Section 3344.1, the district court reasoned that as of 1962, under either New York or California law, no right of publicity could have passed through Monroe’s will.²⁷[27]Id.

In direct response to the district court’s grant of summary judgment in favor of Milton Greene, California State Senator Sheila Kuehl introduced Senate Bill 771 to amend § 3344.1.²⁸[28]Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 991 (9th Cir. 2012). As amended, Section 3344.1 provides that the California statutory right of publicity (i) is deemed to have existed at the time of death of any deceased personality who died before January 1, 1985, (ii) is a freely transferable and descendible property right, and (iii) may pass through the residual clause in the will of the deceased personality.²⁹[29]Cal. Civ. Code § 3344.1 (West 2012); 692 F.3d at 992. In light of the amended statute, Monroe LLC sought reconsideration of the district court’s holding.³⁰[30]692 F.3d at 992. The district court subsequently held that Senate Bill 771 applied retroactively and that the amended Section 3344.1 enabled Monroe’s right of publicity to pass to Monroe LLC through the residual clause of her will, provided that California’s right of publicity law applied.³¹[31]Id. The question became whether Monroe was domiciled in New York or California at the time of her death. As the New York legislature had not yet followed California’s lead in enacting a post-mortem right of publicity, if Monroe was domiciled in New York at the time of her death, her right of publicity would have terminated at her death under the New York law in effect at the time of decision.³²[32]Id. After the district court again ruled in favor of Milton Greene, Monroe LLC appealed the decision.

Turning on whether Marilyn Monroe was domiciled in California or New York at the time of her death, the issue on appeal was whether appellant-beneficiaries of Monroe’s estate inherited a posthumous right of publicity through a residual clause in her will.³³[33]Milton H. Greene Archives Inc. v. Marilyn Monroe LLC, 692 F.3d 983, 986 (9th Cir. 2012). The court found that, prior to the current litigation, Monroe’s estate and entities consistently represented that Monroe died domiciled in New York throughout the preceding forty years.³⁴[34]Id. at 998. The court held that Monroe LLC was judicially estopped from benefitting from California’s posthumous right of publicity law.³⁵[35]Id. at 1000. Thus, as Monroe was domiciled in New York at the time of her death, New York law applied to the question of whether Monroe LLC could enforce Monroe’s post-mortem right of publicity.³⁶[36]Id. As no post-mortem publicity rights existed under New York law at the time, Monroe LLC did not inherit Monroe’s publicity rights through the residual clause of her will and Monroe’s persona entered the public domain.³⁷[37]Id.

Milton H. Greene Archives was a foundational case in establishing California’s current right of publicity laws and demonstrates the significance of New York’s new legislation, Section 50-f. If New York had a post-mortem right of publicity law, such as Section 50-f, in effect at the time of Marilyn Monroe’s death, or a retroactive post-mortem right of publicity law, such as California’s Section 3344.1, Monroe’s estate and entities would have retained ownership over her publicity rights. In such a scenario, the public would have limited access to use Monroe’s persona and it is unlikely that her image would hold the cultural significance it does today.

As New York’s new legislation moves the state closer to the celebrity-friendly end of the publicity rights spectrum, it is helpful to note the key differences between the current New York and California post-mortem publicity laws. Notably, New York’s publicity law recognizes a right of action brought within forty years after the death of the deceased personality,³⁸[38]N.Y. Civ. Rights Law § 50-f(8) (McKinney 2021). while California’s law allows a claim to be brought within seventy years following the death of the deceased personality.³⁹[39]Cal. Civ. Code § 3344.1(g) (West 2012). Furthermore, New York’s post-mortem publicity law is not retroactive and applies to all living and deceased individuals who died on or after May 29, 2021.⁴⁰[40]Civ. Rights § 50-f; 2020 N.Y. Sess. Laws Ch. 304 (S. 5959-D) (McKinney). In contrast, California’s post-mortem publicity law grants a retroactive right that recognizes publicity rights in a deceased personality who has died within seventy years prior to January 1, 1985.⁴¹[41]Cal. Civ. Code § 3344.1(h), (p) (West 2012)..

Private Right of Action for Deepfakes

Alongside the new post-mortem right of publicity, the New York Legislature added a private right of action for the unlawful dissemination or publication of a sexually explicit depiction of an individual under New York Civil Rights Law Section 52-c.⁴²[42]N.Y. Civ. Rights Law § 52-c (McKinney 2021). Also effective as of May 29, 2021, Section 52-c will help deter “deepfakes,” or unauthorized digitally created sexually explicit images and videos. Deepfakes are a mounting concern as technological innovations make it easier to depict individuals in the nude or engaged in sexual conduct in which the depicted individual did not actually engage. Despite arguments raised by the MPA and the Entertainment Software Association⁴³[43]Entertainment Software Association, https://www.theesa.com/. (“ESA”) that the new legislation will infringe on the free speech of creators, Section 52-c quells SAG-AFTRA’s concerns that deepfake technologies will increasingly use artificial intelligence to transform existing images into fictional live-action performances.⁴⁴[44]Gabrielle Carteris, Malicious Pornographic Deepfakes Aren’t Just ‘Free Speech’, SAG-AFTRA (June 18, 2019), https://www.sagaftra.org/malicious-pornographic-deepfakes-aren%E2%80%99t-just-%E2%80%98free-speech%E2%80%99.

While the post-mortem right of publicity applies to deceased personalities and performers exclusively, Section 52-c is broad in scope. The law applies to all living individuals and deceased individuals who died on or after May 29, 2021.⁴⁵[45]2020 N.Y. Sess. Laws Ch. 304 (S. 5959-D) (McKinney). The statute defines a “depicted individual” as a natural person who appears, as a result of digitization, to be giving a performance they did not actually perform or to have an actual performance subsequently altered.⁴⁶[46]N.Y. Civ. Rights Law § 52-c(1)(a) (McKinney 2021). In addition, the statute provides that “digitization” means to realistically depict the nude body 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.⁴⁷[47]Id. § 52-c(1)(b). Under Section 52-c, “sexually explicit material” means any portion of an audiovisual work that shows the depicted individual performing in the nude or appearing to engaging in, or being subjected to, sexual conduct.⁴⁸[48]Id. § 52-c(1)(e).

The new privacy law provides a cause of action against a person who discloses, disseminates, or publishes sexually explicit material related to the depicted individual, and the person knows or reasonably should have known the depicted individual did not consent to its creation, disclosure, dissemination, or publication.⁴⁹[49]Id. § 52-c(2)(a). Unlike the ability to include a disclaimer to avoid liability under Section 50-f, Section 52-c explicitly declares that including a disclaimer in the sexually explicit material will not constitute a valid defense.⁵⁰[50]Id. § 52-c(2)(b). Damages for a claim brought under Section 52-c may include injunctive relief, punitive damages, compensatory damages, and reasonable court costs and attorney’s fees.⁵¹[51]N.Y. Civ. Rights Law § 52-c(5) (McKinney 2021). The statute allows for a claim to commence the later of either: (i) three years after the dissemination or publication of sexually explicit material, or (ii) one year from the date a person discovers, or reasonably should have discovered, the dissemination or publication of such sexually explicit material.⁵²[52]Id. § 52-c(6)(a)-(b).

Although Section 52-c grants an expansive right of action, the statute also recognizes two exceptions to liability. First, there is no liability if the person discloses, disseminates, or publishes the sexually explicit material while reporting unlawful activity, exercising the person’s law enforcement duties, or hearing, trials, or other legal proceedings.⁵³[53]Id. § 52-c(4)(a)(i). Second, there is no liability if the sexually explicit material is a matter of legitimate public concern, a work of political or newsworthy value, or commentary, criticism, or disclosure that is otherwise protected.⁵⁴[54]Id. § 52-c(4)(a)(ii). While current case law on pornographic deepfakes is limited, it is easy to imagine an increase in litigation as artificial intelligence continues to improve.

Conclusion

The additions of Sections 50-f and 52-c represent a significant shift toward granting celebrities more means to protect their personas and control their reputations. The largest complaint against the new privacy laws is that they will hinder the exercise of an individual’s free speech as authorized by the constitutions of New York State and the United States. This concern, however, will likely be brought by companies responsible for creating content that makes use of celebrities’ images sans consent to avoid compensating the celebrities. For instance, the MPA and ESA, both organizations responsible for the creation and production of popular, high-grossing movies and videogames, respectively, were at the forefront of challenging the new legislation due to concerns that creators, such as themselves, would be unjustly restricted in their creative control. While such concerns may be addressed in future judiciary or legislative action, Sections 50-f and 52-c demonstrate a clear desire of the New York Legislature to put the fate of a celebrity’s persona in the celebrity’s own hands.

Written by: Chloe Sucato
Chloe is a 2022 J.D. Candidate at Brooklyn Law School