New York Amends Privacy Statute to Add Post-Mortem Publicity Rights

On November 30, 2020, New York Governor Andrew Cuomo signed S5959D/A.5605-C into law. The new law amends New York's existing right of publicity protections to add a post-mortem right of publicity. This allows a decedent's successor-in-interest to bring an action to protect against commercial exploitation or unauthorized use of the decedent's publicity rights, including the decedent's:

  • Name.

  • Voice.

  • Signature.

  • Photograph.

  • Likeness.

The new protections:

  • Last for 40 years after the decedent's death.

  • Apply only to decedents:

    • who were NY domiciliaries when they died; and

    • whose rights of publicity had commercial value at the time of or because of their death.

  • Can be enforced only by someone who has received the subject rights by:

    • contract;

    • gift;

    • will or trust; or

    • intestate succession.

  • Are subject to express First Amendment exceptions, including use in expressive, newsworthy, and educational works.

The law's other key provisions include:

  • A prohibition on the unauthorized use of a deceptive, digitally-manufactured performance of a deceased performer in an audiovisual work.

  • A new, private right of action for unauthorized dissemination of sexually explicit depictions of a person.

The new law takes effect 180 days from signing and is not retroactive.

PrivacyAaron Messing