In what now appears to be an annual ritual, a bad right of publicity law is being rushed through at the end of the legislative session in New York. Assembly Bill 8155-B (and its counterpart Senate Bill 5857-B) would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. EFF has sent a memorandum [PDF] to members of the New York State Legislature urging them not to support the bill.
The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes. A limited version of this right makes sense—for example, allowing you to stop a company falsely claiming that you endorse its products. But the right of publicity has been expanded in recent years thanks to misguided legislation and court decisions. In some states, the right covers just about any speech that even “evokes” a person’s identity. Celebrities have brought right of publicity cases against movies, rap lyrics, magazine features, and computer games. The right of publicity has even been invoked to silence criticism of celebrities. Since the right of publicity can impact a huge range of speech, any changes to the law should be considered carefully.
We are asking New York legislators to oppose this bill. It has several problems, including:
- Reframing the Right of Publicity as a Property Right: The bill would reframe a well-established privacy right into a freely transferable property right. But the right of publicity only make sense as a cause of action that gives people control over their own image. In this sense, it can be seen a form of false advertising law. When the right is treated like property that can be assigned, celebrities can lose control. For example, a celebrity might assign publicity rights to settle a debt and then find her image pasted over advertisements for products or causes the celebrity finds reprehensible.
- Pressuring heirs to commercialize the image of deceased relatives: In a large estate, an inheritable and transferable right of publicity may add to the tax burden and thus lead heirs with no choice but to pursue advertising deals or some other commercial venture.
- Creation of an unprecedented worldwide right: The bill would turn the State of New York into a litigation destination for celebrities from all over the world.
- Unconstitutionally vague provisions: The bill includes a provision prohibiting use of a digital replica in a “pornographic work.” But the bill does not include a definition of pornographic work and that term does not have a settled legal meaning (and appears to be broader than the First Amendment obscenity standard). Many works of art include R-rated depictions of real persons, including public figures who died within 40 years of the film being produced. These include award-winning movies such as Henry and June, Before Night Falls, and Milk. The bill’s vague statutory language will likely chill creative works protected by the First Amendment.
Right of publicity expert Jennifer Rothman has listed some additional problems with the bill. We hope legislators take the time to consider all of these objections and oppose the latest attempt to expand the right of publicity.