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Observations about New York’s Assembly Bill A.8155B

June 16, 2018 No Comments »
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One has to marvel at the arguments being attempted in opposition to New York’s Assembly Bill A.8155B.  Here is a link to the bill:  New York Assembly Bill A.8155B

In coverage of the bill (in the Hollywood Reporter coverage, link below), the MPAA says one of the fatal problems with the bill is that it does not have limitations for First Amendment purposes.  Let’s shine the white-hot light of truth on such misinformation with a quick look at S.51 of the bill:

 §  51.  Action  for injunction and for damages.  ...  
    50    2. Right of publicity exceptions. For purposes of the right of public-
    51  ity, consent for use  of  another  individual's  persona  shall  not  be
    52  required, except as otherwise provided in subdivisions three and four of
    53  this section, when used in connection with the following:
    54    (a)  news, public affairs or sports broadcast, including the promotion
    55  of and advertising for a public affairs or sports broadcast, an  account
    56  of public interest or a political campaign;
        A. 8155--B                          5
     1    (b) in:
     2    (i)  a  play,  book,  magazine, newspaper, musical composition, visual
     3  work, work of art, audiovisual work, radio or television program  if  it
     4  is  fictional  or nonfictional entertainment, or a dramatic, literary or
     5  musical work;
     6    (ii) a work of political, public interest or newsworthy value  includ-
     7  ing a comment, criticism, parody, satire or a transformative creation of
     8  a work of authorship; or
     9    (iii) an advertisement or commercial announcement for any of the works
    10  described in paragraph (a) of this subdivision or this paragraph; or
    11    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
    12  stations licensed by the federal communications commission of the United
    13  States, or by not-for-profit advocacy organizations if the  use  is  for
    14  commentary or criticism;
    15    (d)  use  of the right of publicity of a deceased individual where the
    16  licensee or successor in interest has failed  to  register  and  post  a
    17  claim of right under section fifty-h of this article, with the exception
    18  of the safe harbor period listed in subdivision seven of section fifty-h
    19  of this article, until such time as a claim of right has been registered
    20  and posted as required under such section.

Accuracy appears to be the first casualty in the fight against Right of Publicity recognition.  Claiming the First Amendment will be jeopardized and creative works stifled if the legislation is passed is such a popular refrain designed to make every legislator afraid to go against something as fundamental as the First Amendment, that it will be repeated even when the statute specifically contains exactly what it is alleged to lack.

Another observation is the attempt to characterize New York’s bill as something so revolutionary, something so dangerous, that the bill simply must be shelved.  New York’s legislature has been in almost a permanent state of considering this legislation.  Many other states have Right of Publicity recognition firmly in place, and so far, I’m happy to report the First Amendment, creative works, commerce, and freedom in general have not withered in those jurisdictions.  We might have heard about it if these popular, dire predictions actually ever occurred.

Another quick observation relates to the provisions in the bill addressing deep fake uses and digital recreation of a person.  On this point, I might just sit back and listen as the lobbyists attempt to argue against a baseline provision addressing the extreme abuses possible by way of deep fake uses and digital recreation.

Lastly, in the Hollywood Reporter’s coverage, it is suggested that A.8155B isn’t really needed because the Lanham Act, false endorsement and privacy rights already provide adequate recourse.  They  don’t.  That statement would only hold true for the small number of people so famous that they can actually support a trademark claim.  Suggesting that the Lanham Act and privacy rights are a sufficient substitute for the Right of Publicity is simply inaccurate, and this point ought to be beyond debate.  The article says it is not attempting to take offer competing interpretations and that both sides are probably guilty of overreaching, but then comments only on supporters of the bill, with no commentary or insight on how the studios and opponents to the bill may also be overreaching.  Here is the link:  Hollywood Reporter coverage on New York’s Assembly Bill A.8155B

In the ugliness of lobbying, it is apparent that being right, or even knowing what the legislation actually says, is not really an important detail.


Minnesota considering Right of Publicity legislation, aka “Prince Law”

May 12, 2016 No Comments »
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That Minnesota should consider enacting publicity rights legislation is something I stated here shortly after Prince’s untimely passing: http://rightofpublicity.com/prince-knew-the-value-of-his-intellectual-property-42216  Minnesota has responded with draft right of publicity legislation, SF 3609, posted on May 11, 2016:  https://www.revisor.mn.gov/bills/text.php?number=SF3609&version=0&session=ls89&session_year=2016&session_number=0

Predictably, critics of the legislation are taking issue with the bill on First Amendment grounds: http://www.law360.com/ip/articles/794846?nl_pk=bb8aeb3e-4ab9-4ba4-a0af-b895a107fd8a&utm_source=newsletter&utm_medium=email&utm_campaign=ip

While the legislation likely would benefit from expanding the list of fair use exemptions, such as for books, overall the legislation is in good shape and appears well-balanced in its reach and application.

As we have seen from the Michael Jackson estate and questions concerning the valuation of his right of publicity, I expect Prince’s estate will go through a similar review by the IRS.  It should be noted that Minnesota’s potential adoption of the “Prince law” is not dispositive on whether or not Prince’s estate possess a right of publicity.  It should be assumed that it already does.  How it should be treated for taxation purposes is another question altogether.


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