People may soon be able to protect the commercial use of their persona after death in the State of New York under pending right of publicity bills that would expand the current protections available under state law. Lindsay M. Schoen, associate at Manatt, Phelps & Phillips, LLP reports from the USA.
Topic: People in advertising
Who: New York State Legislature
When: Possibly 2009
Where: New York State, USA
Law stated as at: 31 July 2008
People may soon be able to protect the commercial use of their persona after death in the State of New York under pending right of publicity bills that would expand the current protections available under state law.
The right for a person to protect his or her name or likeness in the United States has greatly evolved over the past century. Over the years, a property right developed from the original personal right of privacy. No longer was the concern simply about ordinary people protecting their privacy, but famous individuals also wanted to prevent others from using their names, likenesses and identifying characteristics for commercial purposes without consent. The right of publicity enables individuals to control the commercial exploitation of their identity. This right is protected in the vast majority of the states.
Since the early 1900s, a living person's name, portrait or picture could not be used for advertising or trade purposes in New York without that person's written consent. Once that person passed away, however, so did his or her right to protect these assets.
Post mortem publicity right already in more than 12 US states
The proposed right of publicity law would prohibit the use of a deceased person's persona for advertising or trade purposes in the state of New York without written consent for 70 years after his or her death. If passed, the law would put New York in a group of over a dozen states that provides post-mortem publicity rights in the United States.
Not only would the proposed law provide post-mortem rights to people whose persona had commercial value prior to their deaths, it would expand the scope of covered rights. In addition to giving an estate control over the use of the deceased person's name, portrait or picture, the protected persona would also include his or her voice and signature. This protection would apply retroactively to people who died within 70 years of the effective date or 1 January 2008, depending on how the bills are reconciled.
Although the 2008 session of the New York State Legislature concluded at the end of June without voting on these bills, it is likely these bills will be picked up in the 2009 session because the families and estates of a number of deceased New York celebrities are championing this change.
Why this matters:
This pending New York law is a stark contrast to the current protections afforded in the UK. People in the UK do not have recognized "rights of publicity" to control the commercial exploitation of their identities. Instead, they are able to protect the commercial goodwill in their persona by suing an entity that uses their likenesses in advertising without permission for passing off.
Passing off principles in the UK
To establish a claim for passing off, a person has to prove that (1) he or she has built up bankable goodwill in their likeness by for instance having a public profile and having previously licensed the use of his or her likeness for commercial purposes (2) the use of his or her likeness in the advertising constitutes misrepresentation, for instance because it implied that he or she was paid to appear in the advertising even though he or she had not been, and (3) he or she was likely to suffer substantial damage, for instance resulting from loss of goodwill and an inability to charge appearance fees in the future. There have been no reported cases in the UK where the estate of a deceased person has asserted a passing off claim, so it is assumed that the right to assert a passing off claim does not survive one's death.
If some version of the New York bills is passed, advertisers could no longer use deceased people, including celebrities and public figures, in advertising in New York without permission. In fact, advertisers who have legally been using names, images or voices of deceased people in advertising in New York would now have to seek permission from each deceased person's estate to continue such use or to create similar campaigns.
US risk for UK ads?
This could similarly pose a risk if advertising materials featuring deceased people are created without permission for use in the UK market and these materials are also used in New York or one of the other US states with post-mortem publicity rights.
On a practical note, however, whether the creation of additional post-mortem publicity rights in the United States will prevent US dissemination of UK marketing and advertising campaigns that include deceased people will very much depend on where the person lived when he or she died.
As in most other US states that provide post-mortem publicity rights, a deceased person would only be entitled to these rights under New York law if such rights also exist in the state where he or she was domiciled at the time of his or her death. Because the UK does not recognize post-mortem publicity rights, the estate of a deceased person who was domiciled in the UK at the time of his or her death would not be able to seek such rights under New York law, even if the deceased person appears in marketing or advertising material in New York. Accordingly, although it is important to be aware of this legal issue, UK marketers should not panic because it ultimately might not affect the final creative materials.
Lindsay M. Schoen
Manatt, Phelps & Phillips, LLP