Relates to the right of publicity; amends the definitions of "deceased performer", "deceased personality" and "digital replica" in relation to the right of publicity; relates to the use of a deceased performer's digital replica without authorization by the applicable right holder.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A8882
SPONSOR: Simone TITLE OF BILL:
An act to amend the civil rights law, in relation to the right of
publicity
PURPOSE::
To generally prohibit the use of a digital replica of a deceased person-
ality's voice or likeness in an expressive audiovisual work without
prior consent.
SUMMARY OF PROVISIONS::
Section one of the bill amends § 50-f of the civil rights law as
follows:
Subdivision 1 is amended to revise the definition of "digital replica"
as a computer-generated, highly realistic, electronic performance that
that is readily identifiable as the voice or visual likeness of an indi-
vidual, but either the actual individual did not actually perform or the
actual individual did perform, but the fundamental character of the
performance or appearance has been materially altered.
Subdivision 2 is amended by removing language requiring a disclaimer for
digital replicas in certain expressive works and replacing it with a
stricter standard that holds persons liable for using a deceased
performer's digital replica in audiovisual works, sound recordings, or
live performances without prior consent.
Subdivisions 3 and 6 make technical changes by replacing gender specific
language with gender neutral language.
Subdivision 9 is amended to include streaming services. Subdivision 10
is amended to clarify that persons offering services that display audi-
ovisual or visual works to users are not liable under this section
unless they receive a good-faith notice from a successor in interest
about unauthorized use of a deceased performer's digital replica and
fail to remove the work as soon as is technically and practically feasi-
ble.
Section two of the bill sets the effective date.
JUSTIFICATION::
In 2020, New York established a right of publicity into state law,
requiring consent if a person wishes to use the name, image or likeness
of a deceased person for commercial purposes. The law also created some
narrower protections against the unauthorized use of a deceased perform-
er's digital replica in expressive audiovisual works: rather than
requiring consent before using in such expressive works, a person
currently only needs to offer a disclaimer, so long as the depiction is
not likely to deceive the public into thinking that use was authorized.
This compromise language was enacted at a time when digital replication
was only just beginning. Creating digital replicas was neither easy nor
affordable to do back in 2020. Now, only 5 years later, anyone with a
smartphone can produce and disseminate digital replicas. Given the
unparalleled dangers presented by ubiquitous digital cloning, New York
must strengthen its right of publicity laws to protect deceased person-
alities from being exploited.
To address this growing problem, the bill would require persons wishing
to use the voice or likeness of a deceased person in expressive audi-
ovisual works like movies and video games to obtain the prior consent of
the deceased person's heirs. A similar framework was first enacted in
California in 2024, and it reflects the consensus reached among unions,
performers, studios, labels, broadcasters, platforms and generative
artificial intelligence systems. It is imperative that New York update
its law to keep up with emerging technologies and ensure that people's
voice and likeness are not being exploited for personal gain.
LEGISLATIVE HISTORY::
New Bill
FISCAL IMPLICATIONS::
TBD
EFFECTIVE DATE::
This act would take effect immediately.
