Absence of registrants on New York’s postmortem Right of Publicity registry may not be what it seems
Below is a link to an article presenting information on the absence of New York postmortem registrants on the registry system established by 2020’s enactment of post-mortem right of publicity in New York. There may be reasons for the absence of registrants. Further, the practical aspects of a registration system bring problems and issues, but little utilitarian benefit. States considering right of publicity legislation would be well-advised not to include a registration system, particularly if it is anything other than voluntary, or if it creates a condition for damages.
Here is a link to the article with more information on the status of New York’s post-mortem registry:
New York’s legislature may be closing in on passing a Right of Publicity statute with New York State Assembly Bill A5605C. If so, it would be a significant development in the Right of Publicity realm as New York has been conspicuously behind other states for a very long time. As of July 20, 2020, the bill was “amended on third reading” (here’s a link to the timeline and status of the bill which also has link to the PDF of the bill itself): https://www.nysenate.gov/legislation/bills/2019/A5605
Overall, my take is that this bill would be a step in the right direction, even as it would still amount to New York having one of more narrow or limited Right of Publicity statutes in the United States. For example, a forty year post-mortem provision is quite anemic, and creating a registry system sounds good on paper but in my experience is not particularly helpful yet introduces various problems. Video games are not on the list of exempted works, as they should not be, and also to its credit, the bill has meaningful provisions in relation to Deepfakes and the problems such technology present in the modern world.
The progress of this bill seems already to have traveled further than past efforts. Hopefully, tired refrains like “this bill exists only to enrich a few wealthy estates” are worn-out by now and find no traction. Does copyright and trademark exist only to enrich a few wealthy creators or companies? Observations of past legislative efforts in New York are addressed in the following link I made on the topic: https://rightofpublicity.com/observations-about-new-yorks-assembly-bill-a-8155b
Here is a link to an article I wrote for Licensing International’s Executive Voices series: https://licensinginternational.org/news/discernment-in-licensing-and-enforcement/
A company in New York has begun offering “Dr. Fauci” doughnuts, which apparently involve edible paper on the doughnut with Dr. Fauci’s image printed on it. Dr. Fauci has become a daily fixture in the coverage of the Covid-19 pandemic and a visible leader in the response and information concerning the outbreak. Donuts Delite, the company selling the doughnuts on a nationwide basis, reportedly, will continue selling the doughnuts “as long as they are in demand.” Here is a link to the story: https://www.cnn.com/2020/03/26/us/dr-fauci-doughnuts-trnd/index.html Dr. Fauci Doughnuts
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.
An effort to enact meaningful Right of Publicity recognition in New York is gaining momentum. It is long overdue. Details to follow when available and appropriate for release.
It should be noted that for the better part of the Twentieth Century, New York’s judiciary interpreted New York Civil Law sections 50 and 51 as inclusive of postmortem publicity rights. This means, for example, that at the time of Marilyn Monroe’s death in 1962 New York did indeed recognize such rights (and those rights were capable of passing, and thus did pass, into her estate). There is, therefore, precedent for New York recognizing these rights. It need not be seen as treading into uncharted territory.