NY Legislative Update – Post Mortem Right of Publicity/Digital Replica/Deep Fakes Legislation (S.5959D/A.5605C) 

The NY Legislature was back in session last week for a brief session.

One of the bills that passed involved in the Right of Publicity/Digital Replica and Deep Fakes (S 5959D/A5605C)  We were actively in this legislation. The final bill included our language to protect local radio and TV stations from potential damaging lawsuits.

A Narrow Post Mortem Right of Publicity:  Under current New York privacy law, you need permission if the name, voice or likeness is used for a commercial purpose or trade – essentially in advertising.  These “privacy” rights apply only to the living.  The new legislation does not change any existing law as it relates to the living. Past bills upended all NY privacy laws, creating the potential for a variety of new lawsuits e.g., false light privacy lawsuits, which are not currently recognized in NY.

The legislation creates a new right of publicity for the deceased that is transferable and descendible.  It may be exercised by a decedent’s estate as well as a person who inherited or owns at least 51% of the rights.

There are several important requirements that narrow the scope of the new law.

  • Decedents must be domiciled in NY at time of death (previous versions were not limited to NY domiciles)
  • Applies only to those who die after the bill is enacted (previous version were retroactive)
  • Rights extend for 40 years
  • Estate must register with the NY Secretary of State’s office to file a lawsuit

Litigation risks are reduced significantly. Previous versions would have allowed anyone in the world to come to NY and file a right of publicity suit.  Because it is not retroactive, estates like Marilyn Monroe or Jackie Robinson will not be able to litigate under this bill.  This is also important for radio stations as there is little risk of a lawsuit for broadcasting music recorded by performers that died before this bill is enacted.

Liability only for Deceptive use of a Deceased Person’s Digital Replica:  Past versions of the legislation created liability for the use of a performer’s digital replica without the consent of the individual.  This current legislation has been narrowed and only applies to the deceptive use of a deceased performer’s digital replica.  There is no liability if the person making such use provides “a conspicuous disclaimer in the credits and in any related advertisement, stating that the use of the digital replica has not been authorized.” Moreover, it does not apply to everyone, only to a deceased performer.  A performer is defined as “a deceased natural person domiciled in NY at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument.”  Thus for example there would be no liability for using the digital replica of an average person.

Stations Protected From a “Back Door” Performance Fee:  This is very important! We have been very concerned that “digital replica” liability could become a “back door” performance fee.  Federal copyright law applies only to songwriters and does not recognize a performer’s right to a copyright fee for over-the-air broadcasts.  In previous versions of the bill, a deceased performer’s estate could file a claim under NY law for broadcasting a recording of the performer’s voice.  In other words, the recording itself (stored in a computer or re-mastered) could constitute a “digital replica” of the performer’s voice. This would potentially open up stations for significant liability.

NYSBA inserted language into the new bill that will prevent this type of lawsuit. A digital replica does not include the “electronic reproduction, computer generated or other digital re-mastering of an expressive sound recording or audiovisual work consisting of an individual’s original or recorded performance.”  Rather the definition of a digital replica has been narrowed significantly and applies only to a deceased performer’s:

“…newly created, original, computer-generated, electronic performance by an individual in a    separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual.”

Thus, the definition of a digital replica is limited to a newly created work in which the deceased performer did not actually perform.  Also, the risk of a lawsuit is reduced because the bill no longer applies to a performer who died before the bill was enacted. When combined with the ability to avoid a liability through a disclaimer, the possibility of a “back door” performance fee is essentially eliminated.

Going forward, there may be liability if record labels or movie studios create new computer generated digital performances by a deceased performer.  Unless they fall within one of the exemptions, they will need to obtain authorization from the deceased performer’s estate.

Prior Notice Required: Liability only if a Station has Actual Knowledge that it is Broadcasting Unauthorized Content: Stations do not have the time to edit content or advertising that is provided by their program suppliers.  With programmatic advertising, stations simply do not know what types of advertising will appear on their social media platforms and websites.

NYSBA successfully included language in the bill requiring that stations can be held liable only if they had actual knowledge that the content was not authorized by the decedent’s estate. Actual knowledge requires that the station receive prior notification of the unauthorized use of a deceased personality’s person’s name, likeness, voice or a deceased performer’s digital replica.  Absent notification, there is no liability. This will give a station the opportunity to take offending material down before they are sued.

Exemptions:  The legislation contains numerous broad exemptions for certain types of content that may be broadcast.  With respect to the use of a deceased personality’s name voice or likeness there is an exemption:

 “if the work is a play, book, magazine, newspaper, or other literary work; musical work or composition; work of art or other visual work; work of political, public interest, educational or newsworthy value, including comment, criticism, parody or satire; audio or audiovisual work, radio or television program, if it is fictional or nonfictional entertainment; or an advertisement or commercial announcement for any of the foregoing works.”

A similar exemption applies for the use of a deceased performer’s digital replica.

It shall not be a violation of paragraph b of this subdivision if the work is of parody, satire, commentary, or criticism; works of political or newsworthy value, or similar works, such as documentaries, docudramas, or historical or biographical works, regardless of the degree of fictionalization; a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization,

Liability for Live Performances: There are some express exceptions to the use of a digital replica.  Liability may apply if the digital replica is used in a “live performance of a musical work.” Thus if you are sponsoring a concert consisting of a digital replica, the sponsor would need to obtain authorization from the decedent’s estate.

Advertising and Product Placement: There is no per se violation for using a deceased personalities name, likeness voice, signature, photograph or a deceased performer’s right of publicity simply because the content was commercially sponsored or the program contained advertising or product placement.  This should cover most of our content.

However, the advertisements that appear during an exempted program may not be exempt.  Issues regarding product placement may, based on specific facts, create liability. If the deceased personality or performer’s digital replica is so directly connected with a commercial sponsorship, then there may be liability.  For example, having the AT&T lady appearing in a program in which there is an ATT product placement may give rise to liability.

Deep Fakes: “Deep fakes” involves a situation where a person’s image is manipulated and placed in sexually explicit situation without the persons consent. This has become a huge issue for celebrities and performers. The new law creates liability for these types of digital manipulations. Frankly, it is not our issue.  No station would broadcast these images and it is unlikely that any of your content suppliers would provide them to you. To do so would run afoul of the FCC’s indecency rules.

 Summary:  The bill is complex and there are a number of other provisions concerning estate law and also assessing damages.  This has been a decade long fight and our edits to the bill will help protect stations from future lawsuits.

The text of the legislation that passed can be found clicking HERE.  


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