New York

New York recognizes a right to prevent the appropriation of one’s name or likeness by statute only.  There are no post-mortem rights. New York’s highest court was the first to consider whether there was a right to privacy.  After it rejected such a right, the ensuing outrage was so great that in 1903 New York passed the  country’s first privacy law.

Statute 

YES.

New York provides civil and criminal actions to prevent the unauthorized use within the state of the “name, portrait or picture of any living person [for] advertising purposes, or for the purpose of trade.”  The civil action protects against the same uses, but also adds “voice” to the list of attributes that are protected against unauthorized use.

Common Law - Right of Publicity 

NO

The New York Court of Appeals, the highest court in the state, has expressly held that there is no common law right of publicity.

Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)

Common Law - Right of Privacy-Appropriation Tort 

NO

Messenger ex rel Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (NY 2000)

Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)

Roberson v. Rochester Folding Co., 64 N.E. 442 (N.Y. 1902)

Post-Mortem Right 

NO

James v. Delilah Films, Inc., 544 N.Y.S.2d 447 (N.Y. Sup. Ct. 1989)

Prione v. MacMillan, Inc., 894 F.3d 579 (2d Cir. 1990)

Limits on Right 
Does the law require the plaintiff or identity-holder to be a celebrity or have a commercially valuable identity?

NO

Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)

Does the law protect persona?

MOSTLY NO

The statute is limited to use of name, photograph, portrait and voice. New York courts have allowed claims based on the use of look-alike models, but federal courts have rejected claims for protection of characters and for M & M’s dressed like a particular performer.

Onassis v. Christian Dior-New York, Inc., 472 N.Y.S2d 254 (N.Y. Sup. Ct. 1984)

Burck v. Mars, 571 F. Supp.2d 446 (S.D.N.Y. 2008)

Is Liability Limited to Uses on Commercial Advertising or Commercial Speech?

NO

The statute is broader and allows for liability for any trade purposes. However, many New York courts have held that expressive works do not meet the requirement of a use for advertising or trade purposes, and that advertising for such items is also permissible.  Other New York courts, however, have permitted claims in the context of noncommercial speech, including uses in movies, books, and on t-shirts.

Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)

Foster v. Svenson, 128 A.D.3d 150 (N.Y. App. 2015)

Delan by Delan v CBS, Inc., 91 A.D.2d 255 (N.Y. 1983)

Ward v. Klein, 809 N.Y.S.2d 828 (N.Y. Sup. Ct. 2005)

Shamsky v. Garan, Inc., 632 N.Y.S. 2d 930 (N.Y. Sup. Ct. 1995)

Statutory Defenses 

The statute provides a small number of exemptions, including:

  • Display of a professional photographer’s work in her place of business (unless a written complaint is received)
  • resale of authorized works

N.Y. Civ. Rights Law § 51. Action for Injunction and For Damages

First Amendment Analysis 

New York courts have developed a robust case law protecting uses that are deemed newsworthy or about matters of public interest.  These doctrines are intended to protect First Amendment interests. The state also recognizes an incidental use exception. New York courts have frequently held that movies, works of art, and magazines are uses that are newsworthy and/or matters of public interest, or that on the basis of the First Amendment one must read purposes of trade as excluding such items. However, if uses have no relationship to the underlying work or the use is a disguised advertisement, there may be liability even if the use appears in an expressive work or magazine or newspaper.

Messenger ex rel Messenger v. Gruner & Jahr Printing and Pub., 727 N.E.2d 549 (NY 2000)

Finger v. Omni Publications International, Inc., 566 N.E.2d 141 (NY 1990)

Stephano v. News Group Publications, 474 N.E.2d 580 (N.Y. 1984)

Foster v. Svenson, 128 A.D.3d 150 (N.Y. App. 2015)

Delan by Delan v CBS, Inc., 91 A.D.2d 255 (N.Y. App. 1983)

Groden v. Random House, Inc., 61 F.3d 1045 (2d Cir. 1995)

New York also sits in the Second Circuit Court of Appeals, which considered a First Amendment defense to a right of publicity claim under Oregon law and concluded that, at least in the context of expressive works, uses of others’ names are protected by the First Amendment unless the use is “wholly unrelated” or “simply a disguised commercial advertisement for the sale of goods or services.”  This test seems to track that previously adopted by and regularly employed by New York courts.

Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989).

Other Commentary 

Several New York courts have held that copyright law does not preempt the state’s privacy laws.

Shamsky v. Garan, Inc., 632 N.Y.S. 2d 930 (N.Y. Sup. Ct. 1995)

Ippolito v. Ono-Lennon, 526 N.Y.S.2d 877 (N.Y. Sup. Ct. 1988)

New York courts have also held that an agent can waive a client’s rights over his image in perpetuity even though the client never knew of the waiver or agreed to the use.

Cory v. Nintendo of Am., Inc., 185 A.D. 2d 70 (N.Y. App. 1993)

One New York court has held that the value of a person’s acting and modeling career is marital property subject to distribution in divorce proceedings. 

Golub v. Golub, 527 N.Y.S.2d 946 (1988)