New York recognizes a right to prevent the appropriation of one’s name or likeness by statute only. New York’s highest court was the first to consider whether there was a right of 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. On November 30th, 2020, the Governor of New York signed into law a new postmortem provision which for the first time will add a postmortem right to the state law, lasting 40 years after death. This new law also addresses the “unlawful dissemination or publication of a sexually explicit depictions."
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)
The state will recognize a postmortem right of publicity for 40 years after death 180 days from Nov. 30, 2020, the date the Governor signed the new postmortem bill. The law has ample exceptions for expressive works and also adds a provision addressing digital replicas of deceased performers. For a complete write-up of the bill see https://www.rightofpublicityroadmap.com/news-commentary/new-york-reintroduces-much-improved-postmortem-right-publicity-bill
Senate Bill No. S05959D (signed on Nov. 30, 2020)
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
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)