New York Legislature Amends Right of Publicity Bill for the Worse

Wednesday, June 14, 2017 - 5:00 pm PT
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Today the New York Legislature amended its proposed right of publicity bill, A08155, and not for the better.  Instead, it added language that undermines statutory protections for expressive works. The bill is deeply flawed to begin with and this only makes matters worse--far worse.

The amendment would deny a defense to the use of a person's identity in news, movies, songs, books, and more if the use is "commercial" and "replicates the professional performance or activiities rendered by an individual," if the "replication is inextricably intertwined with the right of publicity of such individuals." 

Separate from the language being virtually unintelligible, even if one understood what such replication entailed, this opens the door to eliminating the very speech protections that are necessary if this wrong-headed bill gets passed.

The amendment is being pushed by SAG-AFTRA, purportedly on behalf of its members. But, it continues to be a mystery why SAG-AFTRA is pushing for these laws without drafting them to protect their members. Actors likely have no idea that this bill would arm managers, Broadway producers, film studios, television networks, Facebook, creditors and ex-spouses to take ownership of their names, voices, likenesses, and even their mannerisms. SAG should be running away from this bill, not toward it.

I have submitted a letter to the New York Legislature detailing the many flaws of the proposed bill and the MPAA, Electronic Frontier Foundation and others have gone on record opposing this troubling proposal to gut New York's longstanding privacy laws.  Such a sea-change deserves robust hearings and consideration. It should not be thoughtlessly rushed through before the legislature recesses for the summer.  

The Book

Privacy Reimagined For A Public World

THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World

This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.

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