New York Based Celebrities and Performers Can Now Pass to their Heirs the Rights to License their Name

New York recently passed a new statute that gives more rights to the heirs of entertainers and other famous people.  The “right of publicity” refers to an individual’s right to control the commercial use of their name, image and likeness. Before the new statute was passed, upon their death, these rights would have terminated. With the passing of the New York statute, if the deceased celebrity was domiciled in New York at the time of their death, their heirs may control the rights to the commercial uses of the individual’s name, image and likeness.

The heirs of Elvis Presley, Marilyn Monroe and Elizabeth Taylor have used laws like this to benefit from the legacy of these deceased celebrities. But currently, these laws do not exist on a nationwide basis. With no federal law in place, it is left to the states to determine the rights to these deceased celebrities. Several states had granted these rights in the past to heirs, including California, which has the most far reaching statute of any state. California’s law applies to any celebrity dying after 1915. Other states, such as Illinois, only permitted the rights to be exercised after the statute was enacted (which was in 1999).

New York’s new statute follows Illinois in that the new right is not retroactive. New York’s statute only applies to people who passed away after May 29, 2021. Additionally, the statute applies to two types of people, “deceased personalities” and “deceased performers.” A “deceased personality” is a person domiciled in New York at the time of death whose “name, voice, signature, photograph, or likeness has commercial value at the time of his or her death,” or whose commercial value was realized because of his or her death.  A “deceased performer” is a person domiciled in New York at the time of death who, for gain or livelihood, was “regularly engaged in acting, singing, dancing, or playing a musical instrument.”[1]

The heirs of the deceased personality can protect the celebrity’s name, voice, signature, photograph, or likeness against their use without prior consent for products, merchandise or goods (or for advertising such items). The heirs of the deceased performer are protected against unauthorized use of their digital replicas in a movie or live musical performance (such as a concert).  New York’s statute specifically addresses “digital rights,” which other states have not addressed. Digital rights include computer generated work (in sound or visual media), which had not previously existed.

The Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) gave some examples of when a commercial entity could be prohibited from using the image of a deceased celebrity without authorization, namely:

1. An audio publisher clones an actor’s voice to construct an audiobook narration.
2. A video game company creates a digital replica of a sports broadcaster to announce a football game.
3. A hologram company projects a living or deceased musician before a live, paying audience.
4. An ad agency or brand creates a replica of a deceased performer for a commercial.
5. A creator uses Deepfake algorithms to depict nonconsenting individuals as nude or performing sex acts in motion pictures.

It’s worth noting that this is not to be interpreted as a total ban on the use of a deceased celebrity’s name or likeness. People may still use the likeness of deceased people using the First Amendment as a defense. Examples of permitted types of uses could include documentaries, parodies, works of criticism, or writing something about the celebrity, which is educational or newsworthy.

People who qualify as a “personality” or a “performer” should plan for these new rights in their estate planning documents, much like an author would plan for the copyrights of their books, a songwriter would protect their rights to songs they had written, or a painter or photographer would protect their rights to their images.

There are several limitations and requirements listed in the statute, which would best be interpreted and protected by retaining an attorney to protect your interests. For example, before a lawsuit alleging infringement on the right of publicity for a deceased celebrity can be filed, one must register his or her interest with New York State, keeping in mind the statute of limitations, which begins at the time of the first publication. One should also note that the rights of publicity for a deceased person’s heirs expire 40 years after the death of the deceased person. This is less than California (70 years), but more than Tennessee (10 years).

The statute affords heirs many new rights and potentially significant opportunities. These rights are also transferable by contract, license or via a will. Similarly, the rights to advertising can be negotiated but there are new risks to consider for advertisers, social media platforms and marketers. This New York legislation creates an obstacle for those seeking to use the images of deceased celebrities, who in the past could have done so without compensating anyone, and would do well to consider the implications of the new statute.

[1] New York Civil Rights Law, §50-f

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact Jeffrey Blankstein who counsels clients on estate and retirement planning, individual taxation, real estate and litigation. Mr. Blankstein is admitted to practice law in New York. Attorney Advertising.