Dead Celebrities And Digital Doppelgangers: New York Expands Its Right-Of-Publicity Statute And Tackles Sexually Explicit Deepfakes – Media, Telecoms, IT, Entertainment

In the Empire State, the right of publicity remains alive and
well—including (soon) for celebrities who are, well, no
longer alive.

New York has expanded its nearly 120-year-old statutory regime
to provide a post-mortem right of publicity for celebrities
domiciled there when they die. Until now, New York Civil Rights Law
Sections 50 and 51 had only extended a right of publicity to living
New Yorkers whose name, portrait, or picture is used for commercial
purposes without consent.

This article highlights the most important provisions of these
new additions to the New York Civil Rights Law, including
exceptions and carve-outs, potential procedural obstacles, and a
handful of gray areas ripe for debate and, in all likelihood,
litigation.

Background and Scope

With Gov. Andrew Cuomo’s signature on November 30, 2020, New
York joined at least 20 other states that allow publicity rights to
survive after death. The new provision, Section 50-f, takes effect
May 29, 2021, and only affords these rights to celebrities who die
on or after that date. Moreover, this post-mortem right of
publicity expires 40 years after the person’s death.

The development follows years of revisions by lawmakers and
lobbying by interested parties. The Screen Actors Guild –
American Federation of Television and Radio Artists (SAG-AFTRA) has
led the efforts to expand Sections 50 and 51 to include rights for
deceased celebrities, while First Amendment advocates and
representatives from media companies objected to a significant
expansion and vocally opposed prior versions of Section 50-f.

With so many cooks in the kitchen and groups from both coasts
closely following along, New York state legislators have grappled
with several complicated issues that carry significant implications
for the entertainment, business, and technology industries.

Section 50-f is narrower than earlier versions considered by the
legislature, and the new statute does not alter right-of-publicity
law in New York for living people. Section 50-f provides for
compensatory damages, statutory damages, lost profits, and punitive
damages. Notably, while Sections 50 and 51 previously left it to
courts to carve out limitations to the right of publicity by
balancing countervailing First Amendment concerns, Section 50-f now
codifies many of those limitations in connection with post-mortem
publicity rights, including exceptions for educational and
newsworthy uses, as well as for comment, criticism, parody, and
satire.

Section 50-f provides publicity rights to two categories of
deceased celebrities:

1. « Deceased personalities, » on behalf of whom damages
   may be sought for the unauthorized use of their likeness for
   commercial purposes; and




2. « Deceased performers, » more narrowly defined as
   actors, singers, dancers, and musicians, on behalf of whom damages
   may be sought for the nonconsensual use of a digital replica so
   realistic that the public would believe it was a performance by the
   deceased (e.g., resurrecting the performer to appear as a hologram
   or the like), but only when the public would be deceived into
   thinking that the deceased performer authorized the digital
   replica.

On the same day Gov. Cuomo enacted publicity rights for dead
celebrities, he also signed into law Section 52-c of the Civil
Rights Law, which addresses deepfake pornography videos by creating
a private right of action for the « unlawful dissemination or
publication of a sexually explicit depiction of an
individual. » This prohibition narrowly applies only to
digitally manipulated videos depicting sexual activity in which the
individual did not in fact participate.

Deceased Personalities: Right to Sue Over Unauthorized
Commercial Use of Likeness

Section 50-f(2)(a) provides a cause of action to a
« deceased personality » for the use of the
personality’s name, voice, signature, photograph, or likeness
« in any manner » for commercial purposes without consent.
A « deceased personality » is defined as any deceased
person « 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. » These rights may be transferred.

The bill codifies several important exceptions. Under Section
50-f(2)(d)(i) and (iii), it is not a violation of publicity rights
if a deceased personality’s name, voice, signature, photograph,
or likeness is used in a play, book, magazine, newspaper or other
literary work, or artwork or other visual work. Likewise, any uses
that are part of a work of political or public interest or a work
that has educational or newsworthy value—including comment,
criticism, parody, or satire—are also protected.

Additionally, any uses that are part of an audio or audiovisual
work, radio, or television program are exempted so long as the work
is fictional or nonfictional entertainment. The statute further
carves out any use in connection with any news, public affairs, or
sports program. Also protected by the statute are uses in
advertisements and commercials for each of these protected
editorial uses—known as the « incidental use »
exception.

Over the course of several decades, courts have developed and
applied similar exceptions to the right of publicity for living
persons afforded by Sections 50 and 51. Now, with respect to
deceased personalities, these judicially crafted limitations have
been codified in Section 50-f(2)(d)(i) and (iii).

Deceased Performers: Right to Sue over Unauthorized Digital
Replicas

Section 50-f(2)(b) provides a cause of action where a
« digital replica » of a « deceased performer » is
used in a « scripted audiovisual work as a fictional
character » or for the « live performance of a musical
work. »

• A « deceased performer » is any deceased person
  « who, for gain or livelihood, was regularly engaged in acting,
  singing, dancing, or playing a musical instrument. »




• A « digital replica » is an « original,
  computer-generated, electronic performance » in which the
  deceased performer did not actually participate but is « so
  realistic that a reasonable observer would believe it is a
  performance by the individual being portrayed and no other
  individual. »

This cause of action would likely arise from the unauthorized
use of a hologram of a deceased performer to generate a new
performance at a concert or play, as part of a movie or television
show, or in an online venue.

This novel addition to the New York Civil Rights Law has several
strong exceptions—including, most notably, placing a
« conspicuous disclaimer » in the credits of a work avoids
liability under Section 50-f(2)(b). The use of a digital replica is
actionable only if no conspicuous disclaimer is given, and if a
reasonable observer would believe that the performance is that of
the deceased performer and no other person and that the digital
replica was authorized.

The statute does not apply to remastering or re-coloring a
performance by a deceased performer. Additionally, like the cause
of action for « deceased personalities, » the right to sue
over an unauthorized digital replica of a « deceased
performer » does not apply where the replica is used as part of
a work that constitutes parody, satire, commentary, or criticism; a
work of political or newsworthy value; or a work that falls into
the category of a docudrama or historical or biographical work, or
any news, public affairs, or sports program. (Section
52-f(2)(d)(ii)&(iii).)

Notably, the live performance of a musical work is carved out of
this exception. In practice, that may leave a play or musical
subject to liability if it features an unauthorized holographic
performance by a deceased performer—even if the performance
or production would be considered parody or satire or to have
political or newsworthy value. That question, along with several
others relating to both causes of action, are left unanswered in
the statutory text.

Cause of Action for Pornographic Deepfake Videos

Finally, Section 52-c takes direct aim at pornographic deepfake
videos where a nefarious actor realistically imposes an
individual’s face on pornographic content such that the person
appears to be engaging in sexual conduct that never happened. Under
Section 52-c, a depicted individual is entitled to an array of
damages for the dissemination of a pornographic deepfake video,
including injunctive relief, compensatory and punitive damages, and
attorney’s fees.

Unlike the cause of action relating to digital replicas, using a
disclaimer to avoid liability for a pornographic deepfake will not
work. Instead, an individual must give permission to be depicted.
The statute exempts law enforcement officers who disclose

these videos as part of their official duties, including at
trial or another 
legal proceeding.

Importantly, the law permits the disclosure of a pornographic
deepfake video 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. The fact that the depicted person is a public figure
does not, in and of itself, permit disclosure of the video on the
basis of newsworthiness.

Below are several unanswered questions that may result in
confusion, if not litigation, after Section 50-f takes effect.

Application of Commercial Sponsorship/Advertisement Exception
to Branded and Other Internet Content

Section 50-f(2)(d)(iv) provides that « it shall not be a
violation of this section if the use is of a name, voice,
signature, photograph, or likeness in a commercial medium solely
because the material containing the use is commercially sponsored
or contains paid advertising or product placement, or includes
within it a use in connection with a product, article of
merchandise, good, or service. »

Although the phrase « commercial medium » is undefined,
it appears to codify existing precedent under Sections 50 and 51
holding that merely because a newspaper, book, or other editorial
product is sold for profit (i.e., is a « commercial
medium »), that fact alone does not convert a protected
editorial use into a prohibited commercial use. This exception
applies to the cause of action afforded deceased personalities and
closely tracks language in a parallel exception to California’s
right-of-publicity statute. Based on the language of this
exception, there is ambiguity as to whether Section 50-f(2)(d)(iv)
also applies to the cause of action for use of deceased performers
in digital replicas.

What may well result in litigation is the statutorily prescribed
instruction for how courts should resolve disputes over Section
50-f(2)(d)(iv):

[I]t shall be a question of fact
whether or not 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.

While this standard may in theory make it more difficult to
evaluate Section 50-f(2)(d)(iv) on a motion to dismiss, courts
should be able to make that determination at the pleading stage if
no reasonable fact finder could find commercial use, just as courts
often do when evaluating whether a statement is not capable of a
defamatory meaning.

Regardless of the phase in litigation, courts are likely to be
faced with difficult questions about how Section 50-f(2)(d)(iv)
applies in the internet age. For instance, if a deceased celebrity
is mentioned or pictured in a newspaper article—which is
clearly permissible under the statute’s newsworthiness
exception—but just below the article is an advertisement for
an alcoholic product, is the reference to the deceased celebrity
nonetheless being used « for the purposes of advertising or
selling, or soliciting purchases of, products, merchandise, goods,
or services » within the prohibition of Section 50-f(2)(a)?

In a physical newspaper, this use would almost surely satisfy
the newsworthiness exception and not be deemed a commercial use.
But one can see how this gets complicated when thinking about the
internet. Take a pop-up advertisement displayed on the screen,
imposed over or within the text of a newspaper article. How about
branded content—an increasingly popular occurrence on the
internet where an advertiser will pay to sponsor editorial content?
Or a social media posting by a celebrity influencer that is not so
clearly sponsored by a particular company?

Courts may be forced to confront these issues not long after
Section 50-f takes effect.

Registration and the « Single Publication » Rule

The statute creates a registration system whereby persons
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. The registration system raises important
issues about the potential timing of future lawsuits.

As a general matter, New York courts apply the « single
publication rule » to right-of-publicity claims, where the
distribution of the offending publication gives rise to a single
cause of action. In other words, when an unauthorized use is
published—say, a television show premieres or a movie or book
is released—the plaintiff has only a single cause of action
to remedy that unauthorized use, and the statute of limitations
begins to run from the 𠊏irst publication.

How this principle might apply to a deceased personality, whose
representative need only secure a registration as a prerequisite
for filing suit (so long as the performer died less than 40 years
ago), may well be the subject of future litigation. For example, if
the estate of a deceased personality completes the registration
form, can the rights holder sue over a television episode that
debuted years earlier but has enjoyed a popular resurgence on
television through reruns?

The legislation was updated to exclude personalities who died
before the bill was enacted, so as a general matter, courts may be
hostile to a look-back of this sort. On the other hand, what if the
episode in question was released on a streaming service like
Netflix or Hulu one day prior to registration, but the episode
remains accessible after the performer’s registration is
complete? Courts will likely have to confront similar issues when
applying the statute in the streaming age.

Determining « Commercial Value » at Time of Death

Section 50-f(1)(b) limits the definition of a « deceased
personality » to any person 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, whether or not during
the lifetime of that natural person the person used his or her
name, voice, signature, photograph, or likeness on or in products,
merchandise, or goods, or for purposes of advertising or selling,
or solicitation of purchase of, products, merchandise, goods, or
services. »

In cases involving prominent celebrities, this is a pro forma
requirement. However, the statute does not define « commercial
value, » which appears to be inherently subjective. For
instance, in the age of social media influencers, may one’s
likeness gain « commercial value » at any moment? And how
do we measure the currency of that « value? » Judges will
likely struggle with this requirement in the first close cases.

Distributor Immunity

Section 50-f(9) provides an important shield from liability for
« owners or employees of any medium used for advertising, »
including « newspapers, magazines, radio and television
networks and stations, cable television systems, billboards, and
transit advertisements. » The owners and employees of these
entities are only liable under Section 50-f for commercial uses of
a deceased personality’s likeness if they have « actual
knowledge by prior notification of the unauthorized use. »
Entities like the New York State Broadcasters Association advocated
for this protection.

In the nonstop world of broadcast radio and television, where
stations often do not have the time to edit or review every piece
of content or advertising that is supplied by a third party,
potential Section 50-f violations loom as a substantial risk. The
actual notice requirement provides distributors of advertising with
a significant safeguard from liability but may raise issues as to
the nature and specificity of the required notice.

Final Thought

While New York has taken meaningful steps to grapple with some
of the most cutting-edge and undefined issues of our day, many
questions remain unanswered. The new cause of action for deceased
personalities will surely bring to the fore important issues about
internet advertising.

Technology has changed the way companies present ads to
consumers, and the application of this new law to pop-up
advertisements, sponsored content, and influencers seems ripe for
litigation. Likewise, the legislature’s foray into the world of
pornographic deepfake videos is an important development but does
not squarely address the pernicious act of « revenge
porn »—the unauthorized release of unaltered sexually
explicit images or video of a victim still escapes civil liability
under this new regime.

With these amendments to the Civil Rights Law and its recent
adoption of an anti-SLAPP law, New York has taken important steps
to address issues of considerable import to the media and
entertainment industries—which will spark creativity, and
lawsuits, in the Empire State.

Originally published 05.26.21

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