Proposed New York Publicity Law

New York Senate Bill S06005 would greatly expand the interests of the heirs and beneficiaries of a celebrity’s estate to control and benefit from the deceased’s fame.

Here is the key text of this legislation:

A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, voice, signature or picture of any deceased natural person who died within seventy years prior to January first, two thousand eight (regardless of whether such person died before or after the effective date of the chapter of the laws of two thousand seven which amended this section), without having first obtained the written consent of such person’s residuary or other legatees, devisees, distributees or the successors in interest thereof, is guilty of a misdemeanor. the rights established under this article are deemed to vest retroactively to the deceased person before such person’s death, so that the transfer by the deceased person or his or her transferees can occur before or at the time of death of the deceased person, including by means of the deceased person’s will.

The bill is has been referred to the Rules Committee.

The question has been posed to me whether this bill would require a novelist or a journalist to get permission to use the name of a deceased person in a book or article.  The question of its applicability to novelists and journalists will depend on how the court interprets the phrase “for purposes of trade.”  Personally, I do not think it would apply and even if an argument was made that it did, I doubt it would withstand a First Amendment challenge. 

For a further discussion of the bill, see Daryl Lang, Bill Aims To Strengthen Publicity Rights In New York, pndonline.com, June 13, 2007.