What Effect Will New York’s New Law Providing for a Post-Mortem Right of Publicity Have on Nonfiction Filmmakers Starting May 29?

POSTED ON May 18, 2021 / IN Documentary Toolkit

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:

  • The definition of the term “deceased personality,” which describes the class of dead individuals whose successors will benefit, is limited to persons who are domiciled in New York State at the time of death. (A domicile is a principal residence, so that a New York State domiciliary might die when vacationing in Utah and still be covered by Section 50-f.) Deceased domiciliaries of other states do not have a right of publicity under New York law.
  • The term “deceased personality” is also limited to those whose “name, voice, signature, photograph or likeness has commercial value at the time of his or her death, or because of his or her death.” This language, which is also found in the California statute, excludes most ordinary folk. (In contrast, the New York statute applicable to the right of publicity of living persons applies to everyone regardless of whether their names and images possess commercial value.)
  • Persons claiming to be a successor in interest to the rights of a “deceased personality”—such as persons who are assigned rights during the individual’s lifetime, or receive rights as beneficiaries under a will or under state law in the absence of a will—need to register their interest with the New York Secretary of State’s office in order to have a valid claim. If an unauthorized use occurs prior to that registration, there can be no legal action based on it.
  • The acts complained of must occur “directly” in New York State.
  • The term of protection is 40 years after death. (This compares with 70 years in California and 100 years in Indiana.)
  • Further, a person has to die on or after the effective date of the new law—May 29, 2021—for the new post-mortem publicity right to apply; there is no retroactive effect.

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.

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