BY:NEIL J. ROSINI
This Q&A was originally published in the Spring 2021 issue of Documentary magazine, a publication of the International Documentary Association, a nonprofit media arts organization based in Los Angeles.
The soon-to-be-effective Section 50-f of the New York Civil Rights Law allows certain heirs, purchasers of publicity rights, and other successors of “deceased personalities” to sue filmmakers and others for some unauthorized uses of the name, voice, signature, photograph or likeness of those deceased individuals. It also prohibits unauthorized use of certain “digital replicas” of “deceased performers.” But it’s unlikely to have much of an effect on nonfiction filmmakers.
For one thing, New York has had a law on the books for decades known as Section 51 of the Civil Rights Law that forbids unauthorized use of the name, portrait, picture or voice of living persons for purposes of advertising or trade. That statute, however, has been interpreted repeatedly on First Amendment grounds to have no application to newsworthy reports in newspapers and documentaries, even if they are profit-making. (This is why The New York Times and the 11 o’clock news don’t ask anyone’s permission to report on them.)
The new Section 50-f, which goes into effect on May 29, 2021, extends protection post-death, but the First Amendment still applies. In fact, Section 50-f, which forbids unauthorized advertising and merchandising uses connected to deceased personalities, has built-in exceptions that implicitly acknowledge the First Amendment’s effect, and then some.
Among the general exceptions to Section 50-f that apply to “deceased personalities” are audio and audiovisual works, radio and television programs, and works of “political, public interest, educational or newsworthy value including comment [or] criticism…” Also excepted are related advertising and “commercial announcements” as well as “news, public affairs or sports” programming, regardless of format. Most nonfiction films fit into one or more of these categories.
And even though there are carve-outs to the exceptions—such as when a use of a deceased person within a work is “directly connected” with commercial sponsorship, paid advertising or product placement, or a use is “so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases”—they are unlikely to apply to the vast majority of nonfiction films. (When were you last tempted to include in your documentary a dead celebrity—or anyone else—for the purpose of selling something? If you are making reality programs that include product placements, it would be different.)
A second reason that Section 50-f is unlikely to impact most nonfiction filmmakers is that similar laws have been in effect for many years in many states other than New York, and are also subject to First Amendment limitations. Section 50-f, in fact, has much in common with the post-mortem right of publicity law in California, including most of the definition of “deceased personality” and much of the California law’s text. Because nonfiction films seeking national distribution have always had to comply with the right of publicity laws of every state, New York’s extension to “deceased personalities” shouldn’t be disruptive.
There are other features of Section 50-f that are speed bumps for a would-be claimant. For example:
Taken together, these limitations make it difficult to bring claims for unauthorized uses of “deceased personalities” on many products and services, including nonfiction films.
But there is more. The new Section 50-f also contains a novel prohibition against a “digital replica” of the dead, which is a computer-generated electronic performance in a new audiovisual work or sound recording in which the deceased individual did not actually perform. This part of the law might have some bearing on computer-generated “digital replicas” that could appear in dramatized re-creations in nonfiction films about dead people—but for the exceptions.
First, the “digital replica” prohibition only applies to a “deceased performer,” which is defined differently from “deceased personality.” It is a person domiciled in New York at the time of death who “for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.” The rule against “digital replicas” doesn’t apply to deceased persons who were not performers in their lifetimes.
Also, the prohibited uses are limited to those “in a scripted audiovisual work as a fictional character, or for the live [sic] performance of a musical work.” This would distinguish nonfiction works categorically.
Further, there are explicit exemptions for uses of “digital replicas” of “deceased performers” in “documentaries, docudramas, or historical or biographical works” as well as other “works of political or newsworthy value, or similar works,” regardless of the degree of fictionalization. And if the “deceased performer” is represented in a work as himself or herself— as opposed to a fictional character—that too is expressly exempt regardless of the degree of fictionalization. Even if a use might otherwise come under scrutiny, liability is avoided simply by adding a “conspicuous disclaimer” of proper authorization.
In sum, appearances in nonfiction films of “deceased personalities” and “deceased performers” that are unauthorized by their post-mortem successors are highly unlikely to result in legal action under New York law.