New York has protected the rights of living persons to control the use of their name and likeness in commerce for over one hundred years. The existing right to privacy gives any person the right to sue for an injunction or damages if their name or likeness is used within New York for advertising or trade purposes without their written consent. See NY CRL § 51. These privacy rights dissipate at death. But starting in May of this year, New York’s new right of publicity statute will grant successors of certain individuals a right of publicity after death. This brings New York’s statute closer to that of California, which has recognized postmortem rights since 1985. The statute also grants new rights concerning the use of deepfakes in sexually manipulated content. More on that below.
The postmortem part of the statute protects only certain individuals who die as New York domiciles and only if they die after the statute goes into effect on May 29, 2021 (i.e., no retroactive effect). The rights that are granted last for 40 years after death and can be transferred by contract, license, trust, will, or another instrument. The bill differentiates between “performers” and “personalities.”