Braunstein, D'Urso, Fahy, Hevesi, Jaffee, Stirpe, Taylor
Add 50-f & 52-c, Civ Rts L
Establishes the right of publicity and provides for a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A5605c REVISED 07/23/2020
SPONSOR: Weinstein (MS) TITLE OF BILL:
An act to amend the civil rights law, in relation to establishing the
right of publicity and to providing a private right of action for unlaw-
ful dissemination or publication of a sexually explicit depiction of an
individual
SUMMARY OF PROVISIONS:
Section 1- new Civil Rights Law § 50-f - definition of terms
Section 2 - new Civil Rights Law § 52-c - private right of action
Section 3 - 180 day effective date
PURPOSE:
To create a right of publicity for deceased individuals, including the
ability of using technology to create digital replicas, and a registry
to publicly post such interests upon thereby giving notice to people who
may seek to use an individual's right of publicity in New York State for
advertising purposes, or for the purposes of trade. In addition, this
bill addresses the ability of technology to create digital replicas for
sexually explicit materials and makes regulations regarding their use.
JUSTIFICATION:
Right of Publicity: As concerns the newly formulated "Right of Public-
ity" contained in this bill, said "right" is commonly thought to have
originated in the United States Court of Appeals for the Second Circuit
in 1953 in Haelan Laboratories v. Topps Chewing Gum to describe the
right of individuals to control the use of their name and likenesses for
commercial and other valuable purposes. Since then, more than half of
the states have granted rights of publicity to individuals either
through the common law or by statute.
The Right of Publicity refers to every individual's inherent right to
control the commercial use of his or her personal characteristics, which
can include name, portrait or picture, voice or signature, each a part
of an individual's persona. The Right of Publicity also protects a
deceased performer's digital replica in expressive works to protect
against persons or corporations from misappropriating a professional
performance.
The most critical function of the Right of Publicity is control. The
Right of Publicity, even though it is a property right, is not merely a
property asset, like a painting or real estate, for estate tax purposes.
The Right of Publicity ensures that if a person, or that person's
successor in interest, does not seek to commercialize the right, they
are not compelled to do so. This bill provides for a post-mortem right
of publicity for forty
years after the death of an individual, allowing successors in inter-
est to provide notice of such interest through a public registration and
posting maintained by the New York Secretary of State. Along with
providing for a post-mortem right of publicity, the bill also has exclu-
sions consistent with constitutionally protected freedom of speech, such
as for newsworthy and satirical content applications.
Finally, the Right of Publicity created through this legislation applies
to New York domiciliaries at the time of death. Prohibition of
Depiction of Sexually Explicit Material: This bill also establishes
protections for victims of nonconsensual manipulated or coerced sexually
explicit material, including so-called "deepfake" pornography. This
aspect of the bill requires a full and knowing consent by the performer
to any use by, for example, a filmmaker of use of the performer's image
- digital or real - in a sexually explicit manner. Similar to the cause
of action created for violation of the right of publicity described
herein, a victim of a non-consented to sexual performance may seek
injunctive and damages relief in a court of competent jurisdiction. The
bill contains rather a unique statute of limitations provision, commonly
referred to as a "date of discovery" provision, which allows an action
to be brought within three years, or one year from when the violation
was or should have been recently discovered by the wronged party.
In conclusion, this bill is balanced in protecting essential first
amendment rights consistent with current law while maintaining the
current status of the right of privacy law and still providing
protections for an individual's right of publicity, whether they are a
child or an adult, forty years after death.
LEGISLATIVE HISTORY:
Similar to: 2017-2018 - A.8155B - Passed Assembly
EFFECTIVE DATE:
This act shall take place on the one hundred and eightieth day after it
shall have become a law, and shall apply to all living individuals and
deceased individuals who died on or after such date.
