The hasty effort in New York to pass a right-of-publicity bill ended—for now—last week after the state assembly sponsor pulled his bill and the senate appeared unwilling to advance its own version until the assembly acted.
Media organizations had opposed the legislation: The National Press Photographers Association said the assembly bill would “unconstitutionally deprive” its members “of the right to exercise property and copyright interests in their still, filmed, and recorded images.” And a broad coalition—including the Reporters Committee for Freedom of the Press, the Media Law Resource Center, and the New York News Publishers Association—ran a full-page ad in the Albany Times-Union calling the bills “an attack on the First Amendment.”
But what’s the right of publicity, anyway? And why were media organizations so concerned about the bills? Those two questions are worth answering: Many states have some kind of publicity-related law on the books, and it’s likely that another New York bill will be introduced in the fall.
What is the right of publicity?
The right of publicity allows you to control the commercial use of your name, likeness, and other identifying characteristics. It’s a civil claim under state law, and it enables people to protect and monetize the value of their identities—and to avoid false implications of endorsement.
While its features vary by state (e.g., some allow heirs to bring claims on behalf of the deceased, others don’t), a plaintiff typically must prove three elements to prevail. First, she has to show that the defendant used part of her identity protected by the applicable right-of-publicity law (e.g., her name, her likeness, etc.). Second, she has to show that the defendant used it for commercial purposes (e.g., in an advertisement). And third, she has to show she didn’t consent to that use.
If their deficiencies aren’t resolved, the bills might ‘stop story-telling about living and deceased public figures from around the world.’
Using a person’s identity in news reporting or commentary about a matter of public interest is generally not a right-of-publicity violation. Courts have cited the First Amendment to that end, and many right-of-publicity statutes provide that reporting and commentary don’t constitute a commercial purpose or otherwise are exempt from liability.
Notably, the right of publicity has a first cousin in privacy law: the tort of misappropriation, which covers much of the same ground. The most significant differences, among those relevant here, is that a misappropriation claim usually can’t be brought by an heir and sometimes doesn’t require use for commercial purposes (use for personal benefit can suffice in some states).
How might the ROP legislation impact the media?
OK, back to New York. The state’s privacy law is over 100 years old, and it allows for civil and criminal actions for using the “name, portrait or picture of any living person [for] advertising purposes, or for the purpose of trade” without consent. The civil action includes a person’s voice, too. State case law is protective of news reporting and commentary.
The recent legislation, supported most vocally by labor unions for artists (e.g., actors and singers), would have radically changed that scheme and raised critical questions about the protections for expressive activities. Here are a few examples from the assembly bill, which was rushed through the legislature without much discussion before it was pulled. Many of these were noted in a memo written by Jennifer Rothman, an intellectual property scholar at Loyola Law School, Los Angeles, who opposed the bill.
- The bill seemed to replace New York’s right of privacy with a right of publicity, raising an obvious question: What would become of the voluminous privacy case law, including its protections for news reporting and commentary?
- The bill extended liability from “advertising” or “trade” uses to “not-for-profit” uses, putting, as Rothman wrote, “a much greater swath of creative works and speech at risk.”
- An amendment eroded the bill’s speech-protective exemptions, including those for reporting and commentary. As Rothman pointed out, “The amendment would deny a defense to the use of a person’s identity in news … if the use is ‘commercial’ and ‘replicates the professional performance or activities rendered by an individual,’ if the ‘replication is inextricably intertwined with the right of publicity of such individuals.’” It’s hard to say what that means, which is the problem: The ambiguity invites litigation whose specter would produce a chilling effect on speech. And as applied to news reporting and commentary on matters of public interest, that amendment violates the First Amendment.
It’s also notable that the bill included an expansive post-mortem provision (the right would be invokable by heirs 40 years after a person’s death), and that the NPPA opposed the bill partly because of its consequences for image-licensing costs. In a memo, the organization’s general counsel, Mickey Osterreicher, observed, “Photographers and their representatives will likely bear the undue burden of researching and locating the owner(s) of such rights and securing approvals, which may never be possible. Most individuals and companies can ill afford these costs with the result being fewer images licensed, and fewer jobs in New York state.”
And that’s just the assembly bill; the senate version had similar problems, plus others. I’m happy that neither crossed the goal line before the session ended, but one or both of the bills is likely to be back sooner than later. If their deficiencies aren’t resolved, as the media coalition that ran the Times-Union ad put it, the bills might “stop story-telling about living and deceased public figures from around the world.”