Use My Likeness? Over My Dead Body!

| Jonathan Hyman

On November 30, 2020, New York Governor Andrew Cuomo signed into law New York Senate Bill S5959D, an amendment to New York’s right of publicity law to provide the 40 year post-mortem right of estates of deceased celebrities and performers to protect their likenesses and rights of publicity. When the new law goes into effect May 31, 2021, New York will join California, Tennessee, and 21 other states in recognizing a post-mortem right of publicity.

Because there is no federal right of publicity, the recognition and treatment of celebrities’ rights of publicity, including their post-mortem rights, depend entirely on the laws of the particular state in which they are domiciled. In one well-known example, Marilyn Monroe’s estate was denied a post-mortem right of publicity. Ms. Monroe died in California, where a post-mortem right of publicity was recognized. To avoid paying California’s higher tax rates, however, her estate claimed New York as her legal domicile. Unfortunately, this tax-minimization strategy was shortsighted, as New York did not recognize a post-mortem right of publicity. When the Monroe Estate attempted to control the use of Ms. Monroe’s image by others, the Ninth Circuit Court of Appeals subsequently ruled that the Monroe Estate did not have a valid right of publicity claim. Had New York’s new law been in place at the time of her death, Ms. Monroe’s estate may have been able to claim enforceable post-mortem rights of publicity. Without these rights, the Monroe Estate has relied on, and continues to rely on, trademark rights to curb misuses of her name and likeness.

New York Law - Deceased Personalities and Deceased Performers

In recognizing the post-mortem rights of publicity for 40 years, the law separates the rights of deceased personalities and deceased performers.

“Deceased personality” is defined as a person 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.” In contrast, “deceased performers” is defined as “a person who for gain or livelihood was regularly engaged in acting, singing, dancing, or playing a musical instrument.”

This law is subject to several exceptions, many of which mirror First Amendment exceptions, such as using the deceased personality/performer’s persona in a work of political, public interest, educational or newsworthy value.

Legislating the Technology of Today and Tomorrow

This law attempts to adapt to today’s advanced technologies in two notable ways.

First, the law explicitly addresses the use of a “digital replica” of a deceased performer. The law defines a “digital replica” of a deceased performer as a “computer-generated, electronic performance in which the person did not actually perform that is so realistic that a reasonable observer would believe it is a performance by the individual.” Among other potential applications, the inclusion of this definition hints at the increasing use of deepfake technology in which a deceased performer could be digitally inserted into movies or television shows. However, such a use is not a violation if it includes “a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement, stating that the use of the digital replica has not been authorized.”

A deepfake is a video that, via advanced digitization and artificial intelligence, pastes a person’s face onto the body of another individual in a separate video. Given recent advancements in technology, it is becoming increasingly easier to create such deepfakes. While seemingly innocuous, the troubling use of this technology that this law addresses stems from people placing the face of a celebrity into pre-existing sexually explicit videos, such as pornography, or using manipulated media for political purposes. New York now joins California, which has already enacted laws targeting deepfakes in pornography and political campaigns.

The New York law aims to protect against the threat of deepfake technology by providing for a private right of action for victims of “unlawful dissemination or publication of a sexually explicit depiction of an individual”; i.e., a deepfake. Under the new law, the depicted individual has a private cause of action against whomever distributed the sexually explicit depiction. While there is a narrow set of exceptions for this provision, it is significant that a depiction of this sort is not newsworthy simply because the person depicted in the sexually explicit video is a public figure.

Editor: Catherine Holland