New York’s New Post-Mortem Right of Publicity Law Comes Into Effect, Part 1 (Guest Blog Post) – Technology & Marketing Law Blog

by visitor blogger Tyler Ochoa

On May 29, 2021, New York’s new autopsy proper of publicity regulation got here into impact.  The regulation is codified at N.Y. Civil Rights Law § 50-f.  It offers for a autopsy proper of publicity for a “deceased personality” or a “deceased performer” for a interval of 40 years after the particular person’s dying.  Because New York didn’t have any autopsy proper of publicity earlier than the enactment of this statute in November 2020, it is a very expansive deal.  However, there’s a catch buried in an uncodified part of the enacted invoice that severely limits the appliance of the brand new statute: it solely applies to celebrities who die on or after the efficient date.  In different phrases, performers and personalities who’re already deceased stay within the public domain for functions of New York regulation.

(In the pursuits of full disclosure: in 2017. 2018, and 2019, I signed statements ready by the Motion Picture Association of America (MPAA) opposing earlier model of this invoice.  I used to be not requested to signal such an announcement in 2020; and to my information, the MPAA did not oppose passage of the amended invoice in 2020.  I would not have any inside data, however I consider that the shortage of retroactivity, excluding beforehand deceased celebrities from the safety of the statute, was an vital a part of the compromise that led the MPAA to just accept the amended invoice.)

This is the primary of a two-part sequence on the brand new regulation. In this publish, I’ll talk about the event of current regulation and former controversies regarding autopsy rights of publicity.  In the following publish, I’ll do a statutory evaluation.

Background: New York’s Existing Statutory Right of Privacy

In 1890, Samuel Warren and Louis Brandeis printed their well-known article The Right to Privacy, 4 Harv. L. Rev. 193 (1890).  In it, they argued for a “right to be let alone,” together with the fitting of an individual to forestall the publication of their {photograph}: “since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to.”  Id. at 211.

A decade later, the article turned the main focus of a litigated case.  Abigail Roberson, age 17, was distressed to find {that a} {photograph} of her was being utilized in an advertisement for the Franklin Mills Flour Company.  She sued for a violation of her proper to privateness.  The case reached the New York Court of Appeals (the best court docket in New York) in 1902, which held 4-Three that the frequent regulation didn’t acknowledge a proper of privateness and he or she couldn’t recuperate.  Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902).

The backlash to the Roberson determination was so robust that in 1903, the New York Legislature enacted what’s now New York Civil Rights Law sections 50 and 51:

50. An individual, agency or company that makes use of for promoting functions, or for the needs of commerce, the title, portrait or image of any dwelling particular person with out having first obtained the written consent of such particular person, or if a minor of his or her guardian or guardian, is responsible of a misdemeanor.

51. Any particular person whose title, portrait, image or voice is used inside this state for promoting functions or for the needs of commerce with out the written consent first obtained as above supplied might keep an equitable motion within the supreme court docket of this state towards the particular person, agency or company so utilizing his title, portrait, image or voice, to forestall and restrain the use thereof; and might also sue and recuperate damages for any accidents sustained by cause of such use….

This was the primary statutory recognition of any sort of proper of privateness within the United States.  As amended (“voice” was added in 1995), this statute remains to be the inspiration for the fitting of privateness in New York.  Note, nevertheless, that part 50 is expressly restricted to “any living person,” and that implicitly, part 51 can also be so restricted (“as above provided”).

Abigail Roberson didn’t get any cash, however she did get the final chuckle.  In 1904, the person who had written the bulk opinion, Chief Judge Alton B. Parker, turned the Democrat nominee for President towards the incumbent, Republican Theodore Roosevelt.  During the marketing campaign, he complained that he and his household unit had been being harassed by photographers (in the present day we call them “paparazzi”):  “I reserve the right to put my hands in my pockets and assume comfortable attitudes without being everlastingly afraid that I shall be snapped by some fellow with a camera.” In response, Roberson wrote a letter published on the front page of the New York Times:  “I take this opportunity to remind you that you have no such right as that which you assert.  I have very high authority for my statement, being nothing less than a decision of the Court of Appeals of this State wherein you wrote the prevailing opinion…. I am forced to the conclusion that this incident well illustrates the truth of the old saying that it makes a lot of difference whose ox is gored.”

Background: The Common-Law Right of Publicity

In 1905, Georgia turned the primary state to undertake a common-law proper of privateness.  The details of the case had been fairly just like Roberson: a studio {photograph} of Paolo Pavesich was used with out his permission in an commercial for all times insurance coverage.  The Georgia Supreme Court unanimously held that “the publication of one’s picture without his consent by another as an advertisement” is an invasion of “the right of privacy.”  Pavesich v. New England Life Insurance Co., 122 Ga. 190, 220, 50 S.E. 68 (1905).  (One suspects it’s not a coincidence that male judges had been extra sympathetic to a person whose image was used with out permission than to a lady in the identical place; however the Georgia judges had been little question additionally conscious of the controversy that the Roberson determination had prompted.)  Numerous states adopted swimsuit; and inside a number of a long time the fitting of privateness was firmly established.  There had been a number of dissenting voices, nevertheless, that steered celebrities couldn’t complain about an invasion of their “privacy” once they had sought the general public limelight.  See O’Brien v. Pabst Sales Co., 124 F.second 167 (fifth Cir. 1941).

In the 1950s, two baseball card corporations went to struggle.  The market chief was Bowman Gum Company, which had signed contracts with various ball gamers allowing it to make use of their likenesses on baseball playing cards.  Most of these contracts additionally supplied for exclusivity: the participant promised to not permit different corporations to do the identical.  The upstart was Topps Chewing Gum, Inc., which paid extra money to acquire releases from most of the similar ball gamers to publish its baseball playing cards.  After Bowman was bought by Haelan Laboratories, it filed swimsuit towards Topps for tortious interference with contract.

But Haelan had at the very least two issues with its case.  The first was that information was an important ingredient of the tort of interference with contract, and Haelan couldn’t at all times show that Topps had information of the exclusivity clauses.  (In some situations, this was as a result of the releases had had been obtained by a 3rd celebration, Russell, which assigned the contracts to Topps.)  The second was the New York statute, which gave the fitting to the gamers to make the choice whether or not to permit their images to be printed.  Haelan might have sued the gamers for breach of contract, but it surely didn’t need them to alienate them.  What Haelan wished was an assignable property proper, in order that it might implement the gamers’ contractual guarantees of exclusivity towards a 3rd celebration.  But Topps argued convincingly that the statutory proper of privateness was a private proper that might not be assigned and will solely be enforced by the particular person depicted.

In the well-known opinion of Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.second 866 (second Cir. 1953), the Second Circuit responded by inventing a “right of publicity” that was assignable:

We assume that, along with and unbiased of that proper of privateness (which in New York derives from statute), a person has a proper within the publicity worth of his {photograph}, i.e., the fitting to grant the unique privilege of publishing his image, and that such a grant might validly be made “in gross,” i.e., with out an accompanying switch of a enterprise or of the rest….

This proper could be referred to as a “right of publicity.” For it’s common information that many outstanding individuals (particularly actors and ball-players), removed from having their emotions bruised by way of public subjection of their likenesses, would really feel sorely disadvantaged in the event that they now not obtained cash for authorizing ads, popularizing their countenances, displayed in newspapers, magazines, busses, trains and subways. This proper of publicity would often yield them no cash except it could possibly be made the topic of an unique grant which barred every other advertiser from utilizing their photos.

Following Haelan, the newly-minted “right of publicity” obtained the endorsement of two influential commentators. The first was Melville Nimmer, who later turned a professor at UCLA School of Law and authored a number one treatise on U.S. copyright regulation. In The Right of Publicity, 19 L. & Contemp. Probs. 203 (1954), Nimmer praised the Second Circuit’s determination in Haelan and beneficial its adoption nationwide.  Six years later, William Prosser, Dean of the University of California at Berkeley School of Law and creator of the treatise Prosser on Torts, authored an influential article entitled merely Privacy, 48 Cal. L. Rev. 383 (1960), by which he named 4 classes of invasions of privateness, together with “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”  Prosser’s 4 privateness torts had been included into the Restatement (Second) of Torts (1977), for which he was the Reporter.  As a outcome, many different states adopted a common-law proper, whether or not named privateness or publicity, that turned an assignable mental property proper.

Note that Haelan was in federal court docket due to variety of citizenship between the events. Accordingly, under the doctrine of Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), the substantive regulation to be utilized by the federal court docket was New York regulation, relatively than normal federal frequent regulation.  Thirty years later, the New York Court of Appeals held that the Second Circuit’s Erie prediction was incorrect.  In Stephano v. News Group Publications, Inc., 64 N.Y.second 174 (1984), it held that “Since the ‘right of publicity’ is encompassed under the Civil Rights Law as an aspect of the right of privacy, which … is exclusively statutory in this State, the plaintiff cannot claim an independent common-law right of publicity.” Id. at 183 (emphasis added).

But the Stephano determination got here thirty years too late.  By the time it was determined, the fitting of publicity was already firmly embedded within the frequent regulation of many different states.  In her guide, The Right of Publicity: Privacy Reimagined for a Public World (Harv. Univ. Press 2018), Professor Jennifer Rothman argues that Haelan was a improper flip that needs to be abolished, and that states ought to return to a proper of privateness that’s private and is not assignable, in order that celebrities (and never companies) retain management over their very own photos.

Background: The Post-Mortem Right of Publicity

During the thirty years that the federal courts had been confidently (however incorrectly) predicting that New York would acknowledge a common-law proper of publicity, in lots of states there arose the query of whether or not the fitting of publicity ought to live on autopsy, in order that an individual’s heirs might implement the fitting of publicity towards others after the particular person’s dying.

In the 1970s and 1980s, various district courts and the Second Circuit predicted that New York would acknowledge a autopsy proper of publicity that was descendible.  See, e.g., Factors Etc., Inc. v. Pro Arts, Inc., 579 F.second 215, 220-22 (second Cir. 1978) (Elvis Presley); Price v. Hal Roach Studios, Inc., 400 F. Supp. 836, 844-45 (S.D.N.Y. 1975) (Laurel and Hardy).  Georgia likewise held that its common-law proper of publicity was descendible.  Martin Luther King, Jr. Center for Social Change, Inc. v. American Heritage Prods., Inc., 250 Ga. 135, 296 S.E.second 697 (1982).

In 1979, nevertheless, the California Supreme Court held that there was no autopsy proper of publicity for a deceased celeb.  (The lead case, mockingly, intertwined actor Bela Lugosi, whose most well-known position was the undead Count Dracula within the 1927 Broadway manufacturing and the 1931 movie adaptation.)  Lugosi v. Universal Pictures, 25 Cal. 3d 813, 160 Cal. Rptr. 323, 603 P.3d 425 (1979); Guglielmi v. Spelling-Goldberg Prods., 25 Cal. 3d 860, 160 Cal. Rptr. 352, 603 P.second 454 (1979) (Rudolph Valentino).  One 12 months later, the Sixth Circuit predicted that Tennessee likewise would not acknowledge a autopsy proper of publicity.  Memphis Development Foundation v. Factors Etc., Inc., 616 F.second 956 (sixth Cir. 1980) (Elvis Presley).

As a outcome, through the first half of the 1980s, plaintiffs with autopsy proper of publicity claims sought to use get their instances heard in New York, whereas defendants sought to make use of the regulation of both California or Tennessee.  See Factors Etc., Inc. v. Pro Arts, Inc., 652 F.second 278, 280-81 (second Cir. 1981) (applying Tennessee regulation), opinion on denial of reh’g, 701 F.2d 11 (second Cir. 1983); Groucho Marx Prods. v. Day & Night Co., 689 F.second 317 (second Cir. 1982) (Marx Brothers).

But there was an abrupt reversal of the regulation in 1984.  That 12 months, the New York Court of Appeals held in Stephano that there was no common-law proper of publicity in New York (autopsy or in any other case), rendering invalid all the instances that had held on the contrary.  Also in that 12 months, California enacted its statutory autopsy proper of publicity (Cal. Civ. Code § 990, later amended and renumbered as Cal. Civ. Code § 3344.1) and Tennessee additionally enacted a statutory autopsy proper of publicity (Tenn. Code § 47-25-1105).  Suddenly, the strategic positions of the events had been reversed: plaintiffs with autopsy proper of publicity claims wished to use the regulation of both California or Tennessee, whereas defendants wished to use the regulation of New York.

This disparity between the dual poles of the enjoyment trade, California and New York, performed out in a outstanding long-running dispute over the autopsy proper of publicity of actress Marilyn Monroe.  At the time of her dying in 1962, Monroe owned each a home in California and an condo in New York.  She lived in California when she was making films, however she lived in New York in between films.  Although she died in California, for tax causes her will was submitted for probate in New York, and her property relied on testament supporting its place that she was “domiciled” in New York on the time of her dying.  Four a long time later, nevertheless, in parallel litigation with photographers in California and New York, her property took the place that she had been domiciled in California, and was due to this fact entitled to its statutory 70-year autopsy proper of publicity.  Eventually, nevertheless, the Ninth Circuit held that her property was judicially estopped from claiming she was domiciled in California, terminating her autopsy proper of publicity.  (For the total story, see my earlier weblog publish titled Marilyn Monroe’s Image is Cast Into the Public Domain — Sort Of).

Thus, for the previous 4 a long time, California has had a statutory autopsy proper of publicity (initially 50 years after dying, now 70 years after dying), whereas New York has no autopsy proper of publicity of any variety.  During the long-running litigation involving Marilyn Monroe, her property tried a number of occasions to get the New York Legislature to enact a autopsy proper of publicity statute.  It failed every time, largely due to opposition from the MPAA.  That is why the enactment of a autopsy proper of publicity statute in New York, after so many failed makes an attempt, is such a giant deal.

For extra on the autopsy proper of publicity, see my earlier weblog publish titled How Long Does a Post-Mortem Right of Publicity Last?–Hebrew University v. GM.  (That ruling, limiting the period of Albert Einstein’s autopsy proper of publicity to 50 years, was so controversial that it was later vacated upon settlement, by agreement between the events.  See Hebrew University of Jerusalem v. General Motors, Inc., 2015 WL 9653154 (C.D. Cal. Jan. 12, 2015).)

Stay tuned for half 2 of this sequence.