Earlier this month, New York Governor Andrew Cuomo signed a bill establishing post-mortem “Rights of Publicity.” This bill protects deceased individuals from commercial exploitation, or unauthorized use, of their well-known and recognized personal characteristics. This bill protects actors, singers, dancers, musical instrument players, and other performers who lived in New York when they passed away. Additionally, the estate of these individuals can also exercise these rights to protect the likeness of those deceased.1
The right of publicity is an intellectual property right which protects against the misappropriation of a person’s name, likeness, or other indicia of personal identity, such as, nickname, voice, signature, photograph, likeness, for commercial advantage.2 While no federal statute or case law recognizes the right of publicity in the United States, a majority of states do recognize this right by statute or case law. For example, the state of Florida also recognizes a post-mortem right of publicity for a term of 40 years after death of an individual.3
1. S5959D /A.5605-C, https://legislation.nysenate.gov/pdf/bills/2019/S5959D. This bill also created new penalities for publishing sexually explicit depictions o individuals, protecting people from revenge porn and “deep fakes” (synthetic media increasingly used in the digital age to create images of fake events). https://www.governor.ny.gov/news/governor-cuomo-signs-legislation-establishing-right-publicity-deceased-individuals-protect.
3. Fla. Stat, § 540.08.