'Imagine' This: John Lennon Would Have Received Post-Mortem Right to Publicity in New York

On November 30, 2020, New York Governor Cuomo signed into law a bill that will allow estates and representatives of deceased individuals to defend their names and likenesses from commercial exploitation, allowing their estates to continue to control and protect their likeness after their death. The new law, which establishes a “Right to Publicity” for deceased individuals who were domiciled in New York at their time of death, allows these individuals to protect their personal characteristics that have commercial value, including their name, picture, voice, or signature, against unauthorized use.

In connection with the new post-mortem right to publicity, Governor Cuomo stated, “In the digital age, deceased individuals can often fall victim to bad actors that seek to capitalize on their death and profit off of their likeness after they pass away - that ends today. This legislation is an important step in protecting the rights of deceased individuals while creating a safer, fairer New York for decades to come.” The new post-mortem right of publicity applies up to 40 years after the death of the deceased personality, and it provides certain exceptions, such as for works of art or political interest, parodies and satires, and the use of names and likenesses in the news.

In enacting this law, New York joins the minority of U.S. states which recognize a post-mortem right of publicity, an area of law that has long been controversial and which has resulted in extensive discussion of choice-of-law rules.

For example, California recognizes the post-mortem right of publicity for “deceased personalities,” whose name, likeness, voice, signature, or photograph had commercial value at the time of their death, until 70 years after the death of the deceased personality. Tennessee’s post-mortem right of publicity states that “every individual” has a property right in the use of their name and likeness, though the protection from exploitation only extends for 10 years after the individual’s death.

Indiana’s law is particularly broad, recognizing a post-mortem right of publicity for 100 years after the personality’s death, and it has been read to apply to those who were not domiciled in Indiana at their time of death, though the unauthorized use must occur in Indiana. Indiana’s law also applies to an extensive range of aspects of a personality’s likeness, including their distinctive appearance, gestures, and mannerisms. However, like many other states’ post-mortem publicity rights, it still provides exceptions for art and newsworthy content.

Washington’s law also has been read to apply to individuals who were not domiciled in Washington at their time of death, resulting in a controversy over whether the law is constitutional. The Ninth Circuit eventually reversed a district court decision finding that certain provisions of the law were unconstitutional, but it narrowed its holding to the limited controversy before the court, which was related to deceased rock artist Jimi Hendrix, who was domiciled in New York at his time of death. This decision left an open question as to whether other states must recognize Washington’s law. Washington’s post-mortem right to publicity also differentiates between an “individual” or a “personality” whose name, voice, signature, photograph, or likeness had commercial value at the time of his or her death. This distinction is important because the individual’s post-mortem right lasts for 10 years after the time of death, but the personality’s lasts for 50 years.

Other states have attempted to enact post-mortem rights of publicity, but the legislation did not pass. For example, in Minnesota, legislators introduced the PRINCE Act, inspired by the death of the artist Prince, who was domiciled in Minnesota at his time of death in 2016. The proposed legislation sought to protect a deceased individual’s name, image, voice, and signature for 50 years following the individual’s death. However, it was eventually set aside due to concerns that it was too rushed and overly broad. Other states, such as New Mexico, do not have specific statutes providing for a general or post-mortem right of publicity, but they allow for claims in tort based on violation of the right to privacy.

New York’s new post-mortem right of publicity will begin to take effect 180 days after its signing, and it will apply to all individuals who die on or after this date. It will be interesting to see if New York’s new legislation leads additional states to provide statutory post-mortem rights of publicity, or if it results in the scope of these rights being further addressed in court.