N.Y. Civil Rights Law § 50-f: Right of publicity

§ 50-f. Right of publicity. 1. For purposes of this section:

a. "deceased performer" means a deceased personality domiciled in this

state at the time of death who, for gain or livelihood, was regularly

engaged in acting, singing, dancing, or playing a musical instrument.

b. "deceased personality" means any deceased natural person domiciled

in this state at the time of death whose name, voice, signature,

photograph, or likeness has commercial value at the time of such natural

person's death, or because of such natural person's death, whether or

not during the lifetime of that natural person the person used such

natural person's name, voice, signature, photograph, or likeness on or

in products, merchandise, or goods, or for purposes of advertising or

selling, or solicitation of purchase of, products, merchandise, goods,

or services.

c. "digital replica" means a newly created, computer-generated, highly

realistic electronic representation that is readily identifiable as the

voice or visual likeness of an individual that is embodied in a sound

recording, image, audiovisual work, including an audiovisual work that

does not have any accompanying sounds, or transmission in which: (i) the

actual individual did not actually perform or appear; or (ii) the actual

individual did perform or appear, but the fundamental character of the

performance or appearance has been materially altered. A digital replica

does not include the electronic reproduction, use of a sample of one

sound recording or audiovisual work into another, remixing, mastering,

or digital remastering of a sound recording or audiovisual work

authorized by the copyright holder.

d. "sound recordings" are works that result from the fixation of a

series of musical, spoken, or other sounds, but not including the sounds

accompanying a motion picture or other audiovisual work, regardless of

the nature of the material objects, such as disks, tapes, or other

phonorecords, in which they are embodied.

2. a. Any person who uses a deceased personality's name, voice,

signature, photograph, or likeness, in any manner, on or in products,

merchandise, or goods, or for purposes of advertising or selling, or

soliciting purchases of, products, merchandise, goods, or services,

without prior consent from the person or persons specified in

subdivision four of this section, shall be liable for any damages

sustained by the person or persons injured as a result thereof.

b. Any person who uses a deceased performer's digital replica in an

audiovisual work, sound recording, or for the live performance of a

musical work, with knowledge that the use was of a digital replica and

was not authorized by the applicable right holder, shall be liable for

any damages sustained by the person or persons injured as a result

thereof if the use occurs without prior consent from the person or

persons in subdivision four of this section.

c. In any action brought under this section:

i. the person who violated the section shall be liable to the injured

party or parties in an amount equal to the greater of two thousand

dollars or the compensatory damages suffered by the injured party or

parties, as a result of the unauthorized use, and any profits from the

unauthorized use that are attributable to such use and are not taken

into account in computing the compensatory damages.

ii. in establishing profits under this subdivision, the injured party

or parties shall be required to present proof only of the gross revenue

attributable to the unauthorized use, and the person who violated this

section is required to prove such person's deductible expenses.

iii. punitive damages may also be awarded to the injured party or

parties.

d. For purposes of this subdivision:

i. it shall not be a violation of paragraph a of this subdivision if

the work is a play, book, magazine, newspaper, or other literary work;

musical work or composition; work of art or other visual work; work of

political, public interest, educational or newsworthy value, including

comment, criticism, parody or satire; audio or audiovisual work, radio

or television program, if it is fictional or nonfictional entertainment;

or an advertisement or commercial announcement for any of the foregoing

works.

ii. it shall not be a violation of paragraph b of this subdivision if

the work is of parody, satire, commentary, or criticism; works of

political or newsworthy value, or similar works, such as documentaries,

docudramas, or historical or biographical works, including some degree

of fictionalization; a representation of a deceased performer as

themself, including some degree of fictionalization, except in a live

performance of a musical work; de minimis or incidental; or an

advertisement or commercial announcement for any of the foregoing works.

iii. it shall not be a violation of this section if the use of a name,

voice, signature, photograph, or likeness occurs in connection with any

news, public affairs, or sports program or account, regardless of

format, medium or means of transmission, or any political campaign.

iv. it shall not be a violation of this section if the use is of a

name, voice, signature, photograph, or likeness in a commercial medium

solely because the material containing the use is commercially sponsored

or contains paid advertising or product placement, or includes within it

a use in connection with a product, article of merchandise, good, or

service. Rather, it shall be a question of fact whether or not the use

of the deceased personality's name, voice, signature, photograph, or

likeness was so directly connected with the commercial sponsorship or

with the paid advertising or product placement as to constitute a use

for which consent is required under this subdivision.

v. works identified pursuant to this paragraph shall not violate this

section, regardless of the medium or means of transmission.

e. In relation to a violation of paragraph a of this subdivision, if a

work that is protected under paragraph d of this subdivision includes

within it a use in connection with a product, article of merchandise,

good, or service, this use shall not be exempt under paragraph d of this

subdivision, notwithstanding the unprotected use's inclusion in a work

otherwise exempt under paragraph d of this subdivision, if the claimant

proves that this use is so directly connected with a product, article of

merchandise, good, or service as to constitute an act of advertising,

selling, or soliciting purchases of that product, article of

merchandise, good, or service by the deceased personality without prior

consent for the use under paragraph a of this subdivision from the

person or persons specified in subdivision four of this section.

3. The rights recognized under this section are property rights,

freely transferable or descendible, in whole or in part, by contract,

license, gift, or by means of any trust or any other testamentary

instrument. In the absence of an express transfer in a testamentary

instrument of the deceased personality's rights in such deceased

personality's name, voice, signature, photograph, or likeness, a

provision in the testamentary instrument that provides for the

disposition of the residue of the deceased personality's assets shall be

effective to transfer the rights recognized under this section in

accordance with the terms of that provision. The rights established by

this section shall also be freely transferable or descendible by

contract, license, gift, trust, or any other testamentary instrument by

any subsequent owner of the deceased personality's rights as recognized

by this section. Nothing in this section shall be construed to render

invalid or unenforceable any contract entered into by a deceased

personality during such deceased personality's lifetime by which the

deceased personality assigned the rights, in whole or in part, to use

such deceased personality's name, voice, signature, photograph, or

likeness.

4. The consent required by this section shall be exercisable by the

person or persons to whom the right of consent, or portion thereof, has

been transferred in accordance with subdivision three of this section,

or if no transfer has occurred, then by the person or persons to whom

the right of consent, or portion thereof, has passed in accordance with

subdivision five of this section.

5. Subject to subdivisions three and four of this section, the rights

under this section of an individual dying intestate shall be distributed

under the laws of intestate succession, and the rights and remedies of

this article may be exercised and enforced by a person or persons who

possess at least a fifty-one percent interest of the individual's rights

under this section. Such persons shall make a proportional accounting

to, and shall act at all times in good faith with respect to, any other

person in whom the rights being enforced have vested.

6. If any deceased personality does not transfer such deceased

personality's rights under this section by contract, or by means of a

trust or testamentary instrument, and there are no surviving persons as

described in subdivision five of this section, then the rights set forth

in subdivision two of this section shall terminate.

7. a. Any person claiming to be a successor in interest to the rights

of a deceased personality under this section or a licensee thereof may

register that claim with the secretary of state on a form prescribed by

the secretary of state and upon payment of a fee, which the secretary of

state shall set by rule. The form shall be verified and shall include

the name and date of death of the deceased personality, the name and

address of the claimant, the basis of the claim, and the rights claimed.

A successor in interest to the rights of a deceased personality under

this section or a licensee thereof shall not have a cause of action for

a use prohibited by this section that occurs before the successor in

interest or licensee registers a claim of the rights.

b. Upon receipt and after filing of any document under this section,

the secretary of state shall post the document along with the entire

registry of persons claiming to be a successor in interest to the rights

of a deceased personality or a registered licensee under this section

upon the secretary of state's internet website.

c. Claims registered under this subdivision shall be public records.

8. An action shall not be brought under this section by reason of any

use of a deceased personality's name, voice, signature, photograph, or

likeness occurring after the expiration of forty years after the death

of the deceased personality.

9. Nothing in this section shall apply to the owners or employees of

any medium used for advertising, including, but not limited to,

newspapers, magazines, radio and television networks and stations,

streaming services, cable television systems, billboards, and transit

advertisements, by whom any advertisement or solicitation in violation

of this section is published or disseminated, unless it is established

that the owners or employees had actual knowledge by prior notification

of the unauthorized use of the deceased performer's digital replica or

deceased personality's name, voice, signature, photograph, or likeness

as prohibited by this section.

10. Nothing in this section shall apply to a person that offers a

service that displays, offers for sale or license, sells or licenses a

work of art or other visual work, or audiovisual work, to a user,

provided the terms of such sale or license do not authorize such user to

engage in acts that constitute a violation of this section, unless it is

established that the person received a notice from the successor in

interest of the deceased performer's digital replica rights based on a

good faith belief that the display, offer for sale or license of the

digital replica on the service is not authorized by the applicable right

holder or the law, and the person has not removed the work containing

the digital replica as soon as is technically and practically feasible.

11. The provisions of this section are in addition to, but shall not

supersede, any other rights or remedies available in law or equity.

12. This section shall apply to the adjudication of liability and the

imposition of any damages or other remedies in cases in which the

liability, damages, and other remedies arise from acts occurring

directly in this state. For purposes of this section, acts giving rise

to liability shall be limited to the use, on or in products,

merchandise, goods, or services, or the advertising or selling, or

soliciting purchases of, products, merchandise, goods, or services

prohibited by this section.

13. Nothing in this section shall be construed to limit, or to

enlarge, the protections that 47 U.S.C. § 230 confers on an interactive

computer service for content provided by another information content

provider, as such terms are defined in 47 U.S.C. § 230.