New York State Expands Right Of Publicity Protections, Including To Deceased Persons

December 18, 2020

By: Toby M.J. Butterfield and David Rabinowitz

New York State recently enacted a controversial statute which creates a new set of rights giving heirs of deceased persons the exclusive right to exploit the deceased person’s name, likeness and voice for commercial (typically advertising) purposes.

This “right of publicity“ is widely accepted throughout the United States for living persons. While this right generally covers all persons, it is of particular importance to celebrities who derive significant revenue from product endorsements; actors and models who require payment for their name or likeness to appear in advertising; or any other prominent person similarly portrayed.

However, only a few states allow the right of publicity to continue after death. New York State, which previously extended this right only to living persons, has now joined those other states in making the right descendible, creating complications for those who create or use advertising.

The same new statute also places detailed and important new restrictions on the use of “deep fakes” software, which artificially creates the appearance or performance of a person in video, audio or still images. Both these newly created rights extend for specific periods, and are subject to various requirements and defenses designed to protect the freedom of speech. Moses & Singer attorneys regularly advise clients on such issues, and can provide further information on this new statute upon request.