For many years, there was a lively debate in New York as to whether the state should extend protection for an individual's right of publicity after death (i.e., a "post-mortem" right). Entertainers, other celebrities and their representatives tended to support the expansion of the law to permit the families of deceased persons to benefit from exploitation of their relatives' persona and/or to prevent unseemly or embarrassing uses. Media entities, publishers and advertisers opposed it, expressing concern over the chilling effect it might have over free expression and other interests important to core New York businesses.
Finally, in 2020, a post-mortem bill was enacted. Hereis a post I wrote at that time. In brief, the new statute provides protection for certain commercial exploitations of individuals' rights of publicity (defined as their "name, voice, signature, photograph or likeness") for 40 years after death. The law is applicable to persons whose rights of publicity had commercial value at the time of their death, or "because of their death." The new protections apply to persons who died as New York domiciliaries on or after May 29, 2021. There are a number of other limitations, exceptions and nuances which are beyond the scope of this post.
Importantly, the New York statute includes a registration requirement. Any person claiming to be a successor in interest to a person's right of publicity, such as an heir or other owner of the right, may register the claim with the New York Secretary of State. In order for a claim to be made for infringement of the post-mortem right, the claim must be registered before the allegedly infringing use commences. So here is a list of all of the registrations that have been filed under in the nearly 18 months that the post-mortem right has existed:
That's right. There has not been a single claim yet filed by the heir, representative or other successor in interest of any deceased person seeking to take advantage of New York's new post-mortem protection.
I will keep you posted on developments.
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