Daniel Nazer writes:
The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. The bill was introduced less than two weeks ago and is being rushed through without any hearings. EFF is urging legislators to slow down before passing an unnecessary law that would threaten the freedom of expression of individuals, activists, artists, and journalists around the United States.
The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes. While a limited version of this right makes sense (for example, allowing you to stop a company from using your name in an advertisement without permission), it has turned into a monster in recent years thanks to misguided legislation and court decisions. In some states, the right covers just about any speech that even “evokes” a person’s identity. Celebrities have brought right of publicity cases against movies, rap lyrics, magazine features, and computer games. The right of publicity has even been invoked to silence criticism of celebrities.
Since the right of publicity can impact a huge range of speech, any changes to the law should be considered carefully. That is especially true if the changes would affect New York law, give that it is home to so many artists and public figures. EFF has submitted a letter in opposition to the New York bill asking legislators to slow down and consider several specific problems:
- Dramatically Expanding the Right of Publicity: The bill expands the right of publicity to include uses of a person’s likeness, including any characteristic that could identify a person, including “gestures” and “mannerisms.” The more expansive the right of publicity is the more it can be used to shut down otherwise lawful speech. The bill would also give a cause of action to anyone whose “identity” was used in New York (as opposed to limiting its scope to those who are domiciled there). This means it could impact almost anything published on the Internet or other national media.
- Reframing the Right of Publicity as a Property Right: The bill would reframe a well-established privacy right into a freely transferable publicity right. But the right of publicity makes the most sense as a cause of action that gives people control over what they endorse. In this sense, it can be seen a form of false advertising law. When the right is treated like property that can be assigned, however, celebrities can lose control over their own image. For example, a celebrity might assign publicity rights to settle a debt and then find her image pasted over advertisements for products or causes the celebrity finds reprehensible. At the very least, the New York legislature should think carefully about whether that is a result it approves.
- Expanding of the Term of the Right: A post-mortem right means heirs can invoke the right long after the celebrity is dead. This massively expands the range of speech impacted by the right of publicity while providing no benefit to the celebrity (who will, of course, be dead).
- Inadequate Protections for Speech: The bill attempts to address some of these negative effects through exemptions. But the prospect of litigation over the meaning of these exemptions will chill even speech that falls within their boundaries—particularly given that the overall bill invites litigation involving parties who aren’t even U.S. residents, much less New York residents. Even worse, we understand that SAG-AFTRA has proposed an amendment that would undermine even the limited protections these exemptions offer.
Right of publicity expert Jennifer Rothman has also submitted detailed comments [PDF] discussing these and other problems with the legislation. We hope legislators take the time to consider these objections.
New York does not have a chronic celebrity shortage that warrants rushed and careless legislation. New York legislators should oppose Assembly Bill A08155 unless and until these problems are fixed. Right of publicity law should not be upended on a whim with disastrous results for free speech.