New York State Assembly Chamber. Photo via Flickr.

The New York state Legislature is considering measures that would expand the state's “right to publicity” protections, which if passed, critics say, would curtail free speech and open media companies up to additional lawsuits.

As it stands now, New York's right to publicity, which is couched in the state's right to privacy statutes, prohibits a person's name, identity or likeness from being used for commercial or trade purposes.

But bills pending in both the state Assembly and th estate Senate would essentially reframe the right to publicity as a property right that exists for up to 40 years after a person's death and may be bequeathed to heirs.

The proposed bills would also remove the New York domiciliary requirement from the law—thus, a party who doesn't live in New York would be able to assert their right to publicity for an act that occurs in the state.

The issue touches on the time-honored tension between free-speech rights with the concerns of celebrities and public figures about their images being exploited, but also includes a 21st century twist: Some celebrities are also increasingly concerned about being replaced by digital avatars and how they may be represented postmortem if they are resurrected as holograms.

The proposed changes in Albany could, in theory, give people greater protections of their images or likenesses and more opportunities for them to seek remuneration, said Christopher Buccafusco, a professor at the Benjamin N. Cardozo School of Law who directs the school's intellectual property and information law program.

But the changes could also have broad effects for publishers, media companies and others who “mine aspects of the real world” for creative purposes.

“If you write a novel and it's got a whole bunch of people you went to high school with in it, I think you're opening yourself up to all kinds of litigation,” Buccafusco said.

According to the state Assembly website, both chambers of the state Legislature have not taken action on the bills, since Jan. 3, the first day of the 2018 legislative session.

The Screen Actors Guild-American Federation of Television and Radio Artists has pushed for passage of the bill, portraying New York's current law as lagging behind other states in terms of protecting artists from exploitation.

“The status quo harms spouses, children and grandchildren of deceased musicians, recording artists, and actors,” said SAG-AFTRA spokeswoman Pamela Greenwalt in an email. “Heirs are unable to prevent disrespectful uses of their loved one's image and likeness. Furthermore, families are denied a fair share from any merchandise, advertisements, digital reanimation, or holographic live performances that feature their loved one's likeness.”

But lawyers for media companies have expressed concerns about implementing a right to publicity similar to those in states with stronger rights, such as California, where there is a common-law right to publicity that lasts for 70 years after a person's death but makes exemptions for use of images in news, sports and political campaigns.

Nathan Siegel, a partner at Davis Wright Tremaine who has represented news and entertainment media companies, likened the proposed legislation to “shooting the horse to swat the fly” in terms of extending protections to artists who are concerned about the use of their image.

Siegel also said that recasting New York's right to publicity as a property right risks sweeping too broadly and said that passage of the proposed language could invite a flood of new lawsuits to test how the courts would interpret the law.

Nancy Wolff, a partner at Cowan DeBaets Abrahams & Sheppard who represents a trade association of image libraries, said she has concerns that the removal of a domiciliary requirement would invite forum shoppers to bring claims in New York courts.

Wolff said she did not think a broader-based right to publicity like California's would be a good fit for New York, where the right is strictly constructed and backed up with more than a century's worth of case law.

“New York has been sort of First Amendment friendly, media-friendly in interpreting that narrowly,” Wolff said.

In a recent battle in New York courts concerning the state's right to publicity, Lindsay Lohan and the daughter of ex-mobster Sammy “The Bull” Gravano sued video game developer Take-Two Interactive Software alleging that their likenesses were misappropriated in “Grand Theft Auto V.”

Manhattan Supreme Court Justice Joan Kenney denied Take-Two's motions to dismiss the suits, but the Appellate Division, First Department, reversed Kenney's ruling, holding there were no violations of state law because the two women were not referred to by name in the game.
The state Court of Appeals took up the cases and heard oral arguments in February; ruling is pending.