It has been reported that the New York legislature has pulled a bill that would have updated, and greatly expanded, the right of publicity in New York. (Terri previously blogged about this legislation). Before it was pulled, the bill had passed the New York State Assembly and was pending before the New York State Senate.

Had it been enacted, the law would have made a number of important changes to New York law, changes that many living celebrities, heirs of dead celebrities, and SAG-AFTRA have long championed. The key changes were:

  • Creating a post-mortem right of publicity that would allow heirs/successors to assert a claim for 40 years after the death of the individual;
  • Extending the reach of the law to cover any “act or event” in the state, regardless of the domicile or residence of the deceased individual whose right of publicity is claimed to be violated (similar to the statues in Hawaii, Indiana and Washington); and
  • Recasting the right of publicity as a property right (rather than a personal right) that is “freely transferable descendible, in whole or in part.”

(Fun fact: the original version of the bill also had expanded the scope of protection beyond name, likeness and voice to include an individual’s “characteristic,” defined as a “distinctive appearance, gesture or mannerism recognized as an identifying attribute of an individual.” That broad provision – reminiscent of the protection afforded to “distinctive appearance, gestures, and mannerisms” under Indiana law – was dropped from the version of the bill that passed the Assembly.)

A number of groups (ANA, MPAA, EFF, among others), media companies, and scholars opposed the bill due to concerns about its chilling effect on free speech.

These and other commentators questioned, on policy grounds, the wisdom of recognizing a post mortem right of publicity, urging the legislature to carefully evaluate, and balance, the interests of the celebrity (and arguably her heirs) against the interests of those who want to use a deceased celebrity’s identity in legitimate ways, whether it be part of a biopic, a video game, a work of art, merchandise, or (yes) an advertising campaign. To give you a flavor of the debate, below are three commonly asserted rationales for the recognition of the right of publicity at all (and the post-mortem right in particular):

  1. To incentivize investment: Analogizing (to a certain degree) to copyright and patent law, some argue that the recognition of a post mortem right of publicity provides additional incentives for actors, musicians, athletes and other celebrities to excel in their chosen fields. It is debatable whether the famous need additional incentives (isn’t fame and fortune during a lifetime enough?) and whether, as a factual matter, the recognition of a post mortem right of publicity would actually motivate celebrity behavior that ultimately benefits society. Do you think that Cardi B is going to work harder – perhaps making more and better music for the world to enjoy – because she knows that her great, great grandchildren will be able to profit off her famous face long after she has gone to her reward? Reasonable minds can differ on the answer to that question.
  2. To protect dignity interests:  A compelling case can be made that any person (celebrity or not) should be able to control, during her lifetime, whether her name and likeness is exploited commercially. Most of us would rather not see our images used in an advertisement for a product without our permission (and without compensation). But after death? I suspect that the dead celebrity will be distracted by the many pleasures of the Good Place and won’t care a whit whether her likeness is exploited commercially on earth. But what about her heirs? Defamation claims are extinguished at death because we have concluded that, on balance, free speech concerns trump any potential interest a dead person’s relatives have in protecting the reputation of the dead. The policy question is whether similar free speech concerns should limit the recognition of the right of publicity to an individual’s lifetime.
  3. To prevent consumer deception: Some argue that the recognition of the right of publicity is supported on policy grounds because it protects individuals (and ultimately consumers) from potential deception. If the law did not prevent it, the argument goes, many advertisers would, without permission and with impunity, use Kim Kardashian’s name and likeness in their campaigns, leading consumers to believe that Kim endorses the brand/product in those campaigns, even when that is not the case. However, after a celebrity dies, is this kind of consumer confusion likely? For example, when consumers see Audrey Hepburn seemingly brought back to life in a commercial for a chocolate bar, they surely aren’t duped into believing that Ms. Hepburn herself has endorsed the candy from the Great Beyond. It is possible, of course, that some consumers might believe that Ms. Hepburn’s heirs endorsed the candy bar. However, given that most consumers would not be able to identify Ms. Hepburn’s heirs, and given that other consumer protection laws exist to address cases of actual deception, it is at least open to debate whether the desire to avoid consumer deception actually supports extension of the right of publicity beyond death.

Thus, at least for now, the status quo remains. Approximately 25 states, either by statute or common law, have recognized a post-mortem right of publicity. So, unless and until a federal statute is enacted to preempt state law (which is not likely to happen anytime soon), an advertiser doing a national campaign featuring an individual who has shuffled off the mortal coil must take into account this patchwork of protection provided by the states.