Back in 1903, New York State adopted what was arguably the first right of publicity law in the United States. It came about as a legislative reaction to the now landmark 1902 case of Roberson v. Rochester Folding Box Co., in which the state court refused to grant relief to a private citizen whose image had been used without her permission as an eye-catcher on a mailer advertising a brand of flour. The majority held that the state’s law provided no statutory or decisional support for remedying a complaint of Ms. Roberson’s kind, which sounded in violation of privacy—a right that, at that time, was only theoretical and had not been codified in any body of statutory law. A three-judge dissent argued that each individual has a natural right to the economic value of her name and likeness; in so writing, they unknowingly created the basis for what evolved into today’s right of publicity law.
The statute New York adopted in 1903 was intended as a right of privacy law and consisted of four recognized torts. The first three were then, and are now, the standard privacy torts of intrusion, public disclosure of private facts, and portrayal in a false light. But the fourth embodied the economic right envisioned by the Roberson dissent, the tort later recognized by William Lloyd Prosser in Torts and the Restatement of Torts as “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.” All four torts were viewed as elements of privacy, and thus personal rather than property rights—the key distinction being that personal rights die with the person, while property rights may survive post mortem and be managed by and to the advantage of the decedent’s estate.
That 1903 law remained literally New York’s only privacy/publicity law, unchanged for more than a century, while the rest of the country passed New York by, developing the “right of publicity” through judicial decisions and—in many states—statutory law. The economic right to control the commercial use of one’s identity, likeness, and personality became widely recognized as a property right. The estates of such iconic personalities as Marilyn Monroe and Jimi Hendrix were stunned to find, in the 21st century, that their decedents’ publicity rights were not protectable because they were domiciled in New York at time of death, and New York’s applicable law was a personal right, not descendible post mortem.
New York changed all that just a few weeks before the end of 2020, adopting a new law that not only recognizes post mortem publicity rights but also rockets ahead of the rest of the country in codifying rights against non-consensual use of one’s image in pornography, including not only reproduction of actual private photos but also “deep fakes” that make the personality appear to be involved in activities in which she never actually participated.
Too late to help the Monroe and Hendrix Estates, the law provides 40 years of post mortem protection for only those personalities who die on or after May 29, 2021. Significantly, the protection is limited to those personalities whose publicity rights had “commercial value” at the time of death or because of that death. It is already a point of debate as to how a decedent’s estate will be able to show such “commercial value” in the case of persons who were not well known and did not exploit their commercial rights of personality during their lifetimes. The law distinguishes a “personality”—anyone whose name or likeness had commercial value at the time of death—from “performers”, who were regularly engaged in acting or musical entertainment during their lifetimes and are thus assumed to have enjoyed commercial value in their personas. It remains to be seen what benefit, if any, the new law would afford a person like Ms. Roberson, an ordinary private citizen whose image was used without permission for the commercial benefit of another. On its face, the new law appears to strongly favor celebrities over “ordinary” folks, but it may be that the appropriation tort that remains part of New York’s four-point 1903 privacy law will still afford protection to the Robersons of the future.
The New York law’s distinction between “personalities” and “performers” creates a particular challenge for attorneys and estates familiar with Washington State’s Personality Rights Act, which distinguishes between “individuals” (ordinary folks) and “personalities” (those whose names and images had value during their lifetimes), the latter being entitled to longer duration of post mortem protection.
The new law’s rights of action against unauthorized uses of deceased personalities’ likenesses, including deepfakes, in pornography as well as for commercial gain have previously been addressed by only a handful of states and set a new standard for the country’s patchwork of varying publicity laws. Adoption of a single federal publicity rights law is already being discussed in the wake of multiple states’ adoption of so-called NIL (“name-image-likeness”) laws for college athletes. The high level of visibility and commentary being accorded New York’s new law may well fuel that growing movement toward nationwide uniformity in this increasingly important area of law.
