Right of Publicity Bills Move in the Right Direction – But Remain Troublesome

Last week we reported that the Assembly introduced legislation (A 5605A) that changes the right of privacy and the right of publicity in New York.  A companion bill was filed in the senate (S.5959A). These bills are poised to move.  We opposed these bills.

New “B” versions of both bills were introduced yesterday. The A5605B passed the Judiciary Committee in the Assembly last night.

According to the legislation, the media would be liable if it used a “digital replica” of a live or deceased performer without consent of the performer.  A “digital replica” was defined as a computer generated or electronic reproduction of a living or deceased individual’s likeness or voice.  Because all audio and visual content is reproduced or computer generated, we were concerned that this would create a “performance tax” under NY state law. Performers would be able to sue stations for broadcasting an image or voice of the performer, even though stations obtained all the necessary copyright licenses.

Fortunately, the new versions move in the right direction.  The bills now make it clear that the digital replica provisions do not apply to digitally or electronically reproduced audio or visual content.  The new, narrow definition ensures there will be no “back door” performance tax.

While new legislation is a step in the right direction, we still have some fundamental concerns with these bills.  We will continue to monitor these bills over the next few days.

To see a copy of S.5959B (Same as A.5605B) click HERE.


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