Review: New York Right of Publicity Law: Reimagining Privacy and the First Amendment in the Digital Age

New York has largely been operating under the same right of privacy statute since 1903. Over a century later, the New York State legislature has decided that it is time to make a big change.
 
A new bill, Assembly Bill A08155, is currently being drafted and considered by the New York legislature. The bill was the center of conversation at an event hosted by the Cardozo Arts and Entertainment Law Journal on February 22. The panel conversation featured a mix of law school professors and private practice attorneys who discussed the merits and drawbacks of the new bill, as well as right of publicity law in general.
 
The bill would revoke and replace New York’s current right of privacy law (Civil Rights Law §50 and §51) and significantly rework the right of publicity as it currently stands. The three most controversial changes to the law would be to make the right of publicity transferable, allow for estates to enforce a decedent’s right of publicity and address concerns of the reanimation of one’s likeness.
 
Why change a law that has been around for over 100 years? Many of the panelists felt there was no need to change the status quo and recreate New York’s right of publicity. Professor Jennifer Rothman suggested sticking to the law as it exists now, relying on current privacy laws for the living and using trademark, false endorsement and copyright law for the deceased. Attorney Nancy Wolff, who represents many artists and photographers, cautioned against upending the massive amount of jurisprudence that has been built around the existing law, specifically as it relates to protecting media organizations and free speech. She noted that because New York is the center of the media and publishing industry, repealing a law that has been important in protecting newsworthy uses of people’s names and likenesses is troubling. Wolff and attorney Nathan Siegel both believed that the exemptions, as crafted, were extremely broad and would lead to a large amount of litigation.
 
By the end of the panel, I was convinced that some of the changes proposed in the new bill were not only unnecessary, but disconcerting. Particularly, the idea of making the right of publicity a transferable right. Initially, the idea of the right of publicity being transferable seemed to be an extension of understanding these rights like any other property right, but Professor Rothman’s discussion of the repercussions of being able to transfer the rights to your likeness convinced me otherwise. She pointed to numerous worrisome examples, such as the ability of a manager who owns his or her client’s right of publicity to use their image in an ad for Oscar Mayer even though they are a vegan. Further, there are times when the voluntariness of this transfer may be questionable, such as if creditors are able to go after a celebrity’s right of publicity in bankruptcy or if a parent signs away their child’s right of publicity. The ability to lose control of one’s identity through a transferable right seemed like a troubling prospect.
 
These same concerns were echoed in Professor Rothman’s discussion of postmortem rights, pointing to the use of Prince’s rights following his death. However, many panelists believed that because so many states already recognized a post-mortem right of publicity, it was only a matter of time before New York did as well. The question instead should be not whether there should be a post-mortem right of publicity, but instead how to craft this right. One interesting suggestion was the idea that the right of publicity would be extinguished upon a person’s death unless that person explicitly transferred it to someone in their will. This struck me as a good compromise of both recognizing that the postmortem right of publicity is becoming standard, while respecting the desires of the deceased.
 
Finally, one of the most interesting issues discussed was the concern over reanimation. Reanimation is the digital recreation of someone’s face or likeness to make it appear as though it is the real person performing or doing an action, when in fact it is a digital avatar. For example, in the movie Rogue One, Peter Cushing (also known as Grand Moff Tarkin) was digitized to make it seem as though he was part of the movie, when in fact he has been dead since 1994. Although the panelists were largely unconvinced of the need for a new right of publicity law, the overwhelming majority believed new legislation should be passed to address reanimation concerns, whether that was part of a right of publicity statute or a discrete statute on its own.
 
Of course, the average citizen is not concerned with missing out on acting opportunities because of new technology, but the concerns of reanimation have serious repercussions for us all. The panelists pointed to the rise of “deepfakes”, the ability to put another person’s face into pornographic videos, making it seem as though that person is realistically performing the actions in the video. This problem is not part of a dystopian future, but is a reality and is occurring so frequently that websites like Reddit are trying to crack down on the practice.
 
Professor Justin Hughes also pointed to another disconcerting use of this technology in the way in which it can be utilized to undermine the democratic process, especially in the era of “fake news.” Professor Hughes pointed to the ability to make it seem as though President Barack Obama or NBC News Anchor Lester Holt has said something he has not said. Again, this is something that has already occurred.
 
While all the panelists agreed these kinds of practices are alarming, Siegel believed that this could be addressed through other laws such as unfair competition (in the case of a celebrity) or defamation laws. However, other panelists pointed out that often those laws are not sufficient because they require the plaintiff to establish a likelihood of confusion, which may not always be the case. Further, Professor Hughes noted that there is an expressive function to be served by having a law specifically stating that this type of conduct is unacceptable and illegal.
 
Ultimately, I agreed with the majority of panelists that a discrete statute addressing this new technological development is necessary, although I am not sure a right of publicity statute is the best place to address those concerns. Because laws that pertain to the right of publicity are often associated with celebrities (and as Professor Rothman noted an earlier draft of the statute would have only protected public performers from reanimation), I feel as though a discrete statute should be crafted to address these concerns. While Siegel cautioned against having a reactionary response to a new technology deemed as “scary” and suppressing new art forms, the concerns laid out above seem sufficiently serious to me to warrant direct legislative action.
 
Overall, the panel provided excellent insights into this new bill. A new draft is slated to be released in April, which will seek to clarify some of the exemptions to the bill and sharpen the goals the legislature seeks to achieve.
 
Brette Trost is a J.D. candidate, 2019, at NYU School of Law.