Deepfakes and Rights for the Dead: New York Adds a Post Mortem Publicity Right and Penalizes Sexually Explicit Deepfakes

Written by Timothy M. Carter

On Monday, November 30, 2020, New York Governor Andrew Cuomo signed into law legislation (S5959D / A.5605-C, which we’ll refer to as the “Statute”) establishing, among other things, a new post-mortem “right of publicity.”  We explain here the key points to know about the new law.

New York’s new post-mortem right is similar to the existing right of publicity protections afforded to all living New Yorkers whose name, portrait, or picture is used for commercial purposes without consent.  See NY Civ. Rts. L. §§50/51.  Rather than modifying New York’s existing protections afforded under New York Civil Rights Law Sections 50 and 51, however, Section 50-f creates a new “right of publicity” specifically for deceased individuals who died domiciled in New York and, at the time of their death, had a commercially valuable identity or personality characteristics—i.e., their name, picture, voice or signature.  See Sec. 50-f(2)(a).  The new provision, Section 50-f, takes effect on May 29, 2021, and affords this right only to a celebrity who dies on or after that date.  Section 50-f provides for compensatory damages, statutory damages, lost profits, and punitive damages for violations of the Statute.

This new post-mortem right extends 40 years after the decedent’s death, and may be exercised by a decedent’s descendants, giving performers’ estates the ability to control and protect their image and likeness.  Similar to California’s procedure, the Statute creates a registration system in which individuals claiming to represent the rights of a deceased personality are first required to register with the New York Secretary of State before filing a lawsuit.

Exemptions

Of significant interest and importance to the multitude of news, media, and entertainment companies in New York are the numerous exemptions outlined in the Statute.  The first is a robust expressive works exemption, which excludes from the scope liability a large swath of First Amendment-protected works, including: (i) plays, books, magazines, newspapers, or other literary works; (ii) musical  works  or compositions; (iii) works of art or other visual works; (iv) works of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; (v) audio or audiovisual works, radio or television programs (fiction or nonfiction); or (vi) an advertisement or commercial announcement for any of the foregoing works.  Sec. 50-f(2)(d)(i).  The Statute also provides that it is not a violation if the work is (i) of parody, satire, commentary, or criticism; (ii) works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or  biographical  works,  regardless  of  the degree  of fictionalization; (iii) a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization, except in a live performance of a musical work; (iv) de minimis or incidental; or (v) an advertisement or commercial announcement for any of the foregoing works.  Sec. 50-f(2)(d)(ii).

In addition to carving out an exception to liability for news, public affairs, and sports programming, Sec. 50-f(2)(d)(iii), the Statute also expressly provides that mere use in commercially sponsored material or use in connection with paid advertising and product placement is not an immediate violation.  Rather, liability will result only where the “use of [the] deceased personality’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising or product placement as to constitute a use for which consent is required[.]”  Sec. 50-f(2)(d)(iv) (emphasis added).

Resurrecting Dead Celebrities

Also codified is a novel new right against deceptive uses of a “deceased performer’s digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work.”  Sec. 50-f(2)(b).  Intended to prevent the so-called “resurrection” of deceased actors and musicians as digital holograms and replicas in films, television shows, and music concerts, a violation will arise where “the use is likely to deceive the public into thinking it was authorized by” specified heirs of the deceased performer.  Importantly, a use is not likely to deceive the public into thinking it was authorized if the person making such use “provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized.”  Sec. 50-f(2)(b) (emphasis added).  In addition, the robust exemptions set forth in Sec. 50-f(2)(d)(i)-(iv) (and outlined above) are equally applicable.

Sexually Explicit Deepfakes

Finally, the Statute creates yet another new, private right of action: a cause of action for the unlawful creation, disclosure, dissemination, or publication of a sexually explicit depiction of an individual, without their consent—i.e., deepfakes.  Section 52-c is similar to California’s AB 602, which passed in October of 2019 and was the first of its kind.  Notably, use of a conspicuous disclaimer stating the depicted individual did not participate in the creation or development of the material will not help avoid liability.  Rather, the depicted individual must consent, and such consent may only be made “by knowingly and voluntarily signing an agreement written in plain language that includes a general description of the sexually explicit material and the audiovisual work in which it will be incorporated.”  Sec. 52-c.  If a violation of Section 52-c is found, a court may award an array of damages, including injunctive relief, punitive damages, compensatory damages, and reasonable court costs and attorney’s fees. 

In keeping with First Amendment and Free Speech principles, the Statute permits the disclosure of a sexually explicit deepfake so long as it is “a matter of legitimate public concern, a work of political or newsworthy value” or if it is a “commentary, criticism or disclosure that is otherwise protected by” the New York Constitution or the First Amendment.  Notably, the mere fact that a depicted person is a public figure does not, by itself, make such material newsworthy.  The statute exempts also law enforcement officers who disclose, disseminate, or publish such sexually explicit material as part of their official duties, including at trial or other legal proceedings.  The signing of this years-in-the-making legislation into law, as well as the recent enactment of New York’s significantly broadened anti-SLAPP law, brings to a tentative conclusion two decades of debate and negotiation over right of publicity issues previously unaddressed in New York law. 

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