Pending New York Post-Mortem Right of Publicity Legislation
SAG-AFTRA strongly supports S 5857-A (Savino) / A 8155-A (Morelle), which will revive the New York post-mortem right of publicity under Civil Rights Law sections 50, 51.
SAG-AFTRA represents 30,000+ New York actors, singers, dancers, stunt performers and recording artists who derive part or all of their income from professional performance services, merchandise royalties, and product endorsement. It is for this reason, the United States Supreme Court and other state statutes have long recognized that a performer’s name, image, and likeness is an intellectual property right. These laws recognize the valuable contribution performers make to our nation’s cultural exchange, creative economy, and consumer experience. In sum, S 5857-A / A 8155-A protects the very careers, livelihoods, pensions, and healthcare coverage of SAG-AFTRA’s membership, and encourages professional performers, in both film and music, to invest in the development of their talents, goodwill and legacy.
As you've seen in recent movies and video games, content creators can now create new photo-realistic performances of even deceased performers. Without the right of publicity, a state-based intellectual property right recognized throughout the country, performers and their heirs have no law on the books to protect them.
The Right of Publicity is Unconstitutional – FALSE
The United States Supreme Court and appellate courts across the country have clearly stated that a state can protect its performers without running afoul the Constitution. Other creators, including writers and journalists, are fully protected by the broad rights of the First Amendment to comment on, report on, or poke fun at public and private figures. In fact, A 8155-A (Morelle) / S 5857-A (Savino) gives creators even more statutory protections beyond what is required by the First Amendment.
23 other states, including California, already have a post-mortem right of publicity. New York state, the media capital of the world, lags behind.
A 8587-A / A 8155-A is Attempting to Prevent Unauthorized Biographical Films - FALSE
SAG-AFTRA fully supports the creation of unauthorized audiovisual works about real people and newsworthy events; works that employ many of our members and add to our film history. Another reason why we are supporting the inclusion of statutory exemptions, which again, go beyond what is required of the Constitution.
SAG-AFTRA believes the Supreme Court got it right when it said the right of publicity is more about protecting the economic value of an entertainer’s career than hurt feelings and reputation. This legislation seeks to clarify that the digital insertion of living or deceased performers into audiovisual works (video game, movie, TV show) to play a fictional character without permission is still arguably a violation of individuals’ right of publicity. In other words, in the event of this kind of theft, a judge, in a court of law, would be able to make a factual and legal determination. Content creators would still have the broad protections of the First Amendment and copyright preemption case law at their disposal. The clarification we advocated for is in response to ever-evolving new technologies, so that performers can have their day in court when their image is stolen in this way.
Check out the ad for the Right of Publicity bill here.