Provides for the right to privacy and publicity for deceased persons.

---

S2999-2011 Actions

• Jan 4, 2012: REFERRED TO CODES
• Feb 4, 2011: REFERRED TO CODES

S2999-2011 Memo

BILL NUMBER:S2999

TITLE OF BILL:
An act
amended the civil rights law, in relation to prohibiting the use of the
name, portrait and/or picture of a deceased personality

SUMMARY OF PROVISIONS:
Adds a new section 50-f to the Civil Rights
Law, to create a post-mortem right of publicity, which prohibits any
person, firm or corporation form using for advertising purposes or
for purposes of trade, the persona of any deceased personality
without having first obtained the written consent of heirs who have
registered their claim of rights. The terms "for advertising purposes
or for the purposes of trade" are meant to be applied and interpreted
in the same manner as applied and interpreted in case law construing
sections fifty and fifty-one of this article. "Persona" is defined as
the name (legal and/or professional), portrait, voice and/or picture
of a natural person, and "Deceased personality" means any natural
person whose persona is of commercial value or was so prior to death,
and who died a domiciliary of New York on or after, or within 70
years prior to, the effective date of the bill. A large part of the
remainder of the bill deals with exceptions:

* There are no restrictions on use of a deceased personality's persona
after 70 years after death.

* There is no liability for actions or conduct involving the use of a
deceased personality's persona that occurred prior to the effective
date of this section.

* The creator, author, or successor in interest of a portrait or
pictures (including a photograph, audio visual image) which are their
property retain inviolate all rights and title, however held,
including the right to license, sublicense, assign, transfer, sell,
or otherwise dispose of such rights and title, and any other right,
power or interest which they possessed prior to the effective date of
this section. In addition, they are not responsible in any
transaction for any requirements to obtain permissions with respect
to licensure, which are the responsibility of a third party entity.
Nor are they required to obtain permission for the use of their
portraits or pictures for any of the following: use on any paper
products, including without limitation calendars, posters, greeting
cards, napkins, and other similar products;
use of the portrait or picture on novelty and souvenir products; use
on tee shirts, where the portrait or picture is on the tee-shirt
itself and not attached to a hangtag or label, or where the use of
the image constitutes a constitutionally-protected expression.

* Any play, book, story, article, magazine, newspaper, newsletter,
other periodical, graphic novel, musical composition, sound
recording, documentary, motion picture or television program or other
audiovisual work,
radio or other audio program, original work of art, art reproduction
or other work derived from such work, calendar, game, work of
political or newsworthy value, informational work, or any other


editorial, artistic or other expressive work, regardless of length or
format, or any advertisement, promotion or commercial announcement
for any such work, in all cases in any medium now known or hereafter
devised, is not be considered to have used a deceased personality's
persona for advertising purposes or for the purposes of trade, so
long as the work is not being used as a purely commercial
advertisement or endorsement.

* This section shall not prohibit the use of a deceased personality's
persona in promotional material or an advertisement for an aggregator
of news reporting and/or entertainment content that (a) uses all or a
part of the content of any news medium or entertainment medium
available to the aggregator's customers; and (b) does not conveyor
reasonably suggest that the deceased personality endorses the news
and/or entertainment aggregator. The term "aggregator" is a party
which receives content not of its own creation from others which it
transmits or otherwise provides to others.

* Nothing in this section shall be construed in a manner that violates
the freedom of speech provisions contained in the United States or
New York Constitutions.

* Nothing prohibits use of a deceased personality's persona to
accurately identify that person as the author of or contributor to a
work or a performer of a recorded performance, under circumstances in
which the work or recorded performance is otherwise lawfully
reproduced, exhibited, or broadcast.

* A provider of any medium now known or hereafter devised who
transmits content which violates this section shall not be subject to
remedies under this section, if such provider is not the creator of
such content.
A deceased personality's persona is declared to be personal property,
freely transferable or descendible, in whole or in part, by contract
or by means of any trust or testamentary instrument, whether such
contract, trust or testamentary instrument is entered into or
executed before or after the effective date of this section, by the
deceased personality or by any subsequent owner of the deceased
personality's persona as recognized by this section.

The transfer of rights of made consistent with State ETPL. Written
consents are exercisable by the persons who collectively own more
than 50% of the rights in the deceased personality's persona, and
reliance upon such written consent provided by those who have
registered a claim of rights under subdivision 15 hereof shall be a
complete defense in any action brought under this section.

No successor in interest to the rights of a deceased personality under
this section or a licensee may recover damages for a use that occurs
before the successor in interest or licensee registers a claim of the
rights under this subdivision. The registry will be in the department
of State, and the cost of registration will be $100. As soon as
possible, the secretary of state is to put the records on the
internet, on the department's website, in a searchable form.

The remedies for violations are limited to those specified in section
fifty-one of this article, and the rights are not exercisable unless


registered with the commissioner of education. Any action to enforce
this section shall be subject to the one-year limitations period set
forth in section 215.3 of the New York Civil Practice Law and Rules.

JUSTIFICATION:
This bill provides a continuing protection to the
images of deceased persons, where there is commercial value in them.
Every effort has been made to balance the needs of heirs and estates
to honor and preserve Such individuals, with constitutional first
amendment provisions and with an understanding that in many cases
economic arrangements have been made by various parties.

PRIOR LEGISLATIVE HISTORY:
S.6005-A of 2008, Codes

FISCAL IMPLICATIONS:
None to the State. Eventually there may be a
charge for the creation of the registry.

EFFECTIVE DATE:
This act shall take effect on the first January next
succeeding date on which it shall become a law.

S2999-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    2999

                         2011-2012 Regular Sessions

                              I N  SENATE

                              February 4, 2011
                                 ___________

  Introduced  by  Sen.  GOLDEN -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT amended the civil rights law, in relation to prohibiting the  use
    of the name, portrait and/or picture of a deceased personality

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. The civil rights law is amended by  adding  a  new  section
  50-f to read as follows:

    S  50-F.  USE OF THE PERSONA OF A DECEASED PERSONALITY PROHIBITED.  1.
  NO PERSON, FIRM OR CORPORATION SHALL USE FOR ADVERTISING PURPOSES OR FOR
  THE PURPOSES OF TRADE, THE PERSONA OF ANY DECEASED  PERSONALITY  WITHOUT
  HAVING FIRST OBTAINED THE WRITTEN CONSENT OF THE PERSON OR PERSONS IDEN-
  TIFIED  IN  SUBDIVISION  TEN  OF  THIS SECTION WHO HAVE REGISTERED THEIR
  CLAIM OF RIGHTS PURSUANT TO SUBDIVISION TWELVE OF  THIS  SECTION  UNLESS
  OTHERWISE PROVIDED HEREIN.
    2. AS USED IN THIS SECTION, THE FOLLOWING TERMS SHALL HAVE THE FOLLOW-
  ING MEANINGS:

    (A)  "PERSONA"  MEANS THE NAME, INCLUDING LEGAL AND PROFESSIONAL NAME,
  PORTRAIT AND/OR PICTURE OF A NATURAL PERSON.
    (B) "DECEASED PERSONALITY" MEANS ANY NATURAL PERSON WHOSE PERSONA  HAD
  COMMERCIAL  VALUE  PRIOR TO HIS OR HER DEATH, AND WHO DIED A DOMICILIARY
  OF THE STATE OF NEW YORK ON OR AFTER THE EFFECTIVE DATE OF THIS SECTION.
    3. NOTHING IN THIS SECTION SHALL BE READ AS PROHIBITING THE USE  OF  A
  DECEASED PERSONALITY'S PERSONA THAT OCCURS AFTER THE EXPIRATION OF TWEN-
  TY-FIVE  YEARS  FOLLOWING  THE  DEATH  OF THAT DECEASED PERSONALITY. NOR
  SHALL ANYTHING IN THIS SECTION BE READ AS CREATING LIABILITY  OR  GIVING
  RISE  TO  ANY  REMEDY  FOR ANY ACTIONS OR CONDUCT INVOLVING THE USE OF A
  DECEASED PERSONALITY'S PERSONA THAT COMMENCED BEFORE EITHER  THE  EFFEC-
  TIVE  DATE  OF  THIS  SECTION OR THE POSTING OF THE REGISTRY PURSUANT TO
  SUBDIVISION TWELVE OF THIS SECTION.

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD07909-01-1

 S. 2999                             2

    4. NOTWITHSTANDING ANY CONTRARY PROVISION OF THIS SECTION, THE CREATOR
  OR AUTHOR OF A PORTRAIT OR PICTURE (INCLUDING A PHOTOGRAPH OR AN  AUDIO-
  VISUAL  IMAGE),  OF  A DECEASED PERSONALITY THAT IS THE PROPERTY OF SUCH
  CREATOR OR AUTHOR OR THE SUCCESSOR  IN  INTEREST  THERETO  SHALL  RETAIN
  INVIOLATE  ALL  RIGHTS  AND  TITLE,  HOWEVER  HELD,  TO THAT PORTRAIT OR
  PICTURE, INCLUDING THE RIGHT TO LICENSE, SUBLICENSE,  ASSIGN,  TRANSFER,
  SELL,  OR  OTHERWISE  DISPOSE  OF  SUCH  RIGHTS AND TITLE, AND ANY OTHER
  RIGHT, POWER OR INTEREST WHICH SUCH CREATOR OR AUTHOR  OR  SUCCESSOR  IN
  INTEREST  POSSESSED  PRIOR  TO THE EFFECTIVE DATE OF THIS SECTION, AND A
  THIRD-PARTY ENTITY MAY ENTER INTO AN  AGREEMENT  WITH  SUCH  CREATOR  OR
  AUTHOR  OR  SUCCESSOR  IN  INTEREST  FOR  LICENSURE  OF  THE USE OF SUCH
  PORTRAIT OR PICTURE, OR TO RECEIVE BY ASSIGNMENT, TRANSFER, OR SALE  THE
  RIGHTS  AND  TITLE  TO SUCH PORTRAIT OR PICTURE TO THE SAME EXTENT WHICH
  SUCH THIRD-PARTY ENTITY POSSESSED OR WOULD HAVE POSSESSED PRIOR  TO  THE
  EFFECTIVE  DATE  OF  THIS SECTION. THE CREATOR OR AUTHOR OR SUCCESSOR IN
  INTEREST SHALL HAVE NO LIABILITY UNDER THIS SECTION FOR  THE  USE  OF  A
  DECEASED PERSONALITY'S PERSONA BY ANY SUCH THIRD-PARTY ENTITY OR FOR ANY
  SUCH  THIRD-PARTY ENTITY'S FAILURE TO OBTAIN ANY PERMISSION FOR SUCH USE
  REQUIRED BY THIS SECTION. NOTHING IN THIS SECTION SHALL BE CONSTRUED  TO
  REQUIRE  THE  CREATOR,  AUTHOR,  SUCCESSOR IN INTEREST OR THIRD-PARTY TO
  OBTAIN PERMISSION TO UTILIZE SUCH PICTURES AND PHOTOGRAPHS FOR ADVERTIS-
  ING PURPOSES, OR FOR THE PURPOSES OF TRADE FROM  PERSONS  IDENTIFIED  IN
  SUBDIVISION  TWELVE OF THIS SECTION FOR ANY OF THE FOLLOWING: USE ON ANY
  PAPER PRODUCTS, INCLUDING WITHOUT LIMITATION CALENDARS, POSTERS,  GREET-
  ING  CARDS,  NAPKINS, AND OTHER SIMILAR PRODUCTS; USE OF THE PORTRAIT OR
  PICTURE ON NOVELTY AND SOUVENIR PRODUCTS; USE ON TOTE BAGS  OR  APPAREL,
  OR  WHERE  THE USE OF THE IMAGE CONSTITUTES A CONSTITUTIONALLY-PROTECTED
  EXPRESSION.
    5. FOR PURPOSES OF THIS SECTION, A PLAY, BOOK, STORY,  ARTICLE,  MAGA-
  ZINE,  NEWSPAPER,  NEWSLETTER,  OTHER PERIODICAL, GRAPHIC NOVEL, MUSICAL
  COMPOSITION, SOUND RECORDING, DOCUMENTARY, MOTION PICTURE OR  TELEVISION
  PROGRAM OR OTHER AUDIOVISUAL WORK, RADIO OR OTHER AUDIO PROGRAM, WORK OF
  ART  (INCLUDING  WITHOUT  LIMITATION PHOTOGRAPHS AND ILLUSTRATIONS), ART
  REPRODUCTION OR OTHER WORK DERIVED FROM  SUCH  WORK  OF  ART,  CALENDAR,
  GAME,  WORK OF POLITICAL OR NEWSWORTHY VALUE, INFORMATIONAL WORK, OR ANY
  OTHER EDITORIAL, ARTISTIC OR OTHER EXPRESSIVE WORK, REGARDLESS OF LENGTH
  OR FORMAT, OR ANY ADVERTISEMENT, PROMOTION  OR  COMMERCIAL  ANNOUNCEMENT
  FOR  ANY  SUCH  WORK,  IN ALL CASES IN ANY MEDIUM NOW KNOWN OR HEREAFTER
  DEVISED, SHALL NOT BE CONSIDERED TO HAVE USED A  DECEASED  PERSONALITY'S
  PERSONA  FOR  ADVERTISING PURPOSES OR FOR THE PURPOSES OF TRADE, SO LONG
  AS SUCH WORK IS NOT BEING USED AS A PURELY COMMERCIAL  ADVERTISEMENT  OR
  ENDORSEMENT.  LIKEWISE,  THIS  SECTION  SHALL  NOT PROHIBIT THE USE OF A
  DECEASED  PERSONALITY'S  PERSONA  IN  ANY  ADVERTISEMENT,  PROMOTION  OR
  COMMERCIAL ANNOUNCEMENT FOR AN AGGREGATOR OF THE CONTENT SPECIFIED ABOVE
  WHEN THAT ADVERTISEMENT, PROMOTIONAL MATERIAL OR COMMERCIAL ANNOUNCEMENT
  ACCURATELY  DEPICTS  ALL  OR  PART  OF  THE  CONTENT  AVAILABLE  TO  THE
  AGGREGATOR'S CUSTOMERS.
    6. THIS SECTION SHALL NOT PROHIBIT THE USE OF A DECEASED PERSONALITY'S
  PERSONA TO ACCURATELY IDENTIFY THAT DECEASED PERSONALITY'S CONTRIBUTIONS
  TO A WORK OR A PERFORMANCE, UNDER CIRCUMSTANCES IN  WHICH  THE  WORK  OR
  PERFORMANCE IS OTHERWISE LAWFULLY REPRODUCED, EXHIBITED, OR BROADCAST.
    7.  A  DECEASED  PERSONALITY'S  PERSONA  IS  PERSONAL PROPERTY, FREELY
  TRANSFERABLE OR DESCENDIBLE, IN WHOLE OR IN PART, BY CONTRACT, BY  MEANS
  OF  ANY  TRUST OR TESTAMENTARY INSTRUMENT, PROVIDED SUCH CONTRACT, TRUST
  OR TESTAMENTARY INSTRUMENT IS ENTERED INTO OR EXECUTED ON OR  AFTER  THE
  EFFECTIVE  DATE  OF  THIS SECTION, BY THE DECEASED PERSONALITY OR BY ANY

 S. 2999                             3

  SUBSEQUENT OWNER OF THE DECEASED PERSONALITY'S PERSONA AS RECOGNIZED  BY
  THIS SECTION.
    8. THE RIGHTS RECOGNIZED UNDER THIS SECTION ARE EXPRESSLY PROSPECTIVE.
  SUCH  RIGHTS  MAY BE PASSED OR ASSIGNED PRIOR TO SUCH DECEASED PERSONAL-
  ITY'S DEATH BY MEANS OF ANY CONTRACT OR TRUST INSTRUMENT, OR  SET  FORTH
  AS  A  SPECIFIC BEQUEST WITHIN A TESTAMENTARY INSTRUMENT OF THE DECEASED
  PERSONALITY EFFECTIVE AS OF THE DATE OF HIS OR HER DEATH.
    9. IF NO TRANSFER OF SOME OR ALL OF THE RIGHTS RECOGNIZED  UNDER  THIS
  SECTION  HAS  OCCURRED  IN  ACCORDANCE  WITH  SUBDIVISION  EIGHT OF THIS
  SECTION, THEN SUCH RIGHTS SHALL BE DEEMED TO HAVE PASSED  IN  ACCORDANCE
  WITH  SECTION  4-1.1  OF  THE  ESTATES, POWERS AND TRUSTS LAW; PROVIDED,
  HOWEVER, THAT IF THERE ARE NO SURVIVING NATURAL  PERSONS  TO  WHOM  SAID
  RIGHTS PASS BY INTESTATE SUCCESSION, THEN SAID RIGHTS SHALL TERMINATE.
    10.  THE WRITTEN CONSENT REQUIRED BY THIS SECTION SHALL BE EXERCISABLE
  BY THE PERSON OR PERSONS WHO COLLECTIVELY OWN MORE THAN FIFTY PERCENT OF
  THE RIGHTS IN THE DECEASED  PERSONALITY'S  PERSONA  IN  ACCORDANCE  WITH
  SUBDIVISION  EIGHT OR NINE OF THIS SECTION AND WHO HAVE REGISTERED THEIR
  CLAIM OF RIGHTS PURSUANT TO SUBDIVISION TWELVE OF THIS SECTION. RELIANCE
  UPON SUCH WRITTEN CONSENT PROVIDED BY THOSE WHO HAVE REGISTERED A  CLAIM
  OF  RIGHTS  UNDER SUBDIVISION TWELVE OF THIS SECTION SHALL BE A COMPLETE
  DEFENSE IN ANY ACTION BROUGHT UNDER THIS SECTION.
    11. THE REMEDIES FOR ANY VIOLATION OF THIS SECTION SHALL BE LIMITED TO
  THOSE SPECIFIED IN SECTION FIFTY-ONE OF THIS ARTICLE, AND THE EXCEPTIONS
  TO LIABILITY SPECIFIED IN SECTION FIFTY-ONE OF THIS ARTICLE SHALL  LIKE-
  WISE BE APPLICABLE TO ANY ASSERTED VIOLATION OF THIS SECTION.
    12.  NO  SUCCESSOR IN INTEREST TO THE RIGHTS OF A DECEASED PERSONALITY
  UNDER THIS SECTION OR A LICENSEE THEREOF MAY FILE A CLAIM  OR  SEEK  ANY
  REMEDY  WHATSOEVER  FOR  A USE PROHIBITED BY THIS SECTION THAT COMMENCED
  BEFORE EITHER THE EFFECTIVE DATE OF THIS SECTION OR BEFORE THE SUCCESSOR
  IN INTEREST OR LICENSEE REGISTERS A  CLAIM  OF  THE  RIGHTS  UNDER  THIS
  SUBDIVISION  AND  THE  SECRETARY  OF STATE POSTS THE REGISTRY UNDER THIS
  SUBDIVISION. ANY PERSON OR PERSONS CLAIMING TO BE A SUCCESSOR IN  INTER-
  EST  UNDER  THIS  SECTION  MUST  OWN OR COLLECTIVELY OWN MORE THAN FIFTY
  PERCENT OF THE RIGHTS IN THE DECEASED PERSONALITY'S PERSONA  IN  ACCORD-
  ANCE  WITH SUBDIVISION SEVEN, EIGHT OR NINE OF THIS SECTION, OR A LICEN-
  SEE THEREOF, AND MUST FIRST REGISTER WITHIN ONE YEAR OF THE DEATH OF THE
  DECEASED PERSONALITY A VERIFIED CLAIM WITH THE SECRETARY OF STATE OF THE
  STATE OF NEW YORK ON A FORM PRESCRIBED BY SUCH  SECRETARY,  WHICH  SHALL
  INCLUDE  THE  NAME  AND  DATE  OF DEATH OF THE DECEASED PERSONALITY, THE
  NAMES AND ADDRESSES OF THE CLAIMANTS, THE BASIS OF THE  CLAIM,  AND  THE
  RIGHTS  CLAIMED. AS SOON AS SHALL BE PRACTICABLE, THE SECRETARY OF STATE
  SHALL CREATE A SYSTEM WHICH ALLOWS, UPON RECEIPT AND AFTER FILING OF ANY
  DOCUMENT UNDER THIS SECTION, SUCH SECRETARY TO POST THE  DOCUMENT  ALONG
  WITH THE ENTIRE REGISTRY OF PERSONS CLAIMING TO BE A SUCCESSOR IN INTER-
  EST  TO  THE  RIGHTS  OF A DECEASED PERSONALITY OR A REGISTERED LICENSEE
  UNDER THIS SECTION UPON THE DEPARTMENT OF STATE WEBSITE,  PROVIDED  THAT
  INSTEAD  OF  THE  NAME  AND  ADDRESS  OF  THE CLAIMANT, THE CLAIMANT MAY
  REQUEST THAT THE CONTACT LISTED ON THE WEBSITE BE THE DESIGNATED  REPRE-
  SENTATIVE  OR  AGENT.  CLAIMS REGISTERED UNDER THIS SUBDIVISION SHALL BE
  PUBLIC RECORDS. THE COST FOR FILING SHALL BE ONE  HUNDRED  DOLLARS.  THE
  SECRETARY  OF  STATE  SHALL  PROMULGATE REGULATIONS FOR CARRYING OUT THE
  PROVISIONS OF THIS SUBDIVISION.
    13. ANY ACTION TO ENFORCE THIS SECTION SHALL BE  SUBJECT  TO  THE  ONE
  YEAR  LIMITATION  PERIOD  SET  FORTH IN SUBDIVISION THREE OF SECTION TWO
  HUNDRED FIFTEEN OF THE CIVIL PRACTICE LAW AND RULES.

 S. 2999                             4

    S 2. If any clause, sentence, paragraph, section or part of  this  act
  shall  be adjudged by any court of competent jurisdiction to be invalid,
  such judgment shall not affect, impair or invalidate the remainder ther-
  eof, but shall be confined in its operation  to  the  clause,  sentence,
  paragraph,  section or part thereof directly involved in the controversy
  in which such judgment shall have been rendered.
    S 3. This act shall take effect on the first of January next  succeed-
  ing the date on which it shall have become a law.