June 21, 2017
AAP Successfully Opposes New York State Right of Publicity Bill
Washington, DC; June 21, 2017 – This week, the Association of American Publishers (AAP) joined New York creative industries and free speech advocates to urge the New York State Assembly to vote “no” on Assembly Bill A8155, a bill introducing an overbroad right of publicity that did not clearly exempt constitutionally protected expressive works. The current legislative session ended today without passage of the bill.
Properly scoped iterations of the right of publicity, arising out of State common or statutory law, can be compatible with First Amendment and copyright protections, and serve the valid goal of protecting well-known individuals from the unauthorized commercial use of their likenesses in products or merchandise. Unfortunately, A8155 did not belong in this category.
A8155 would have enabled any living individual, or his or her heirs for a period of 40 years after that individual’s death, to sue if the individual’s likeness or characteristic, including “a distinctive appearance, gesture or mannerism,” is used without written consent. The legislation included a proposed exemption for books and other expressive works, which is the typical means employed in right of publicity laws to resolve the free speech concerns of authors, publishers and others in the creative communities.
Regrettably, a convoluted "commercial use" exception threatened to swallow up the protection the exemption is supposed to provide and can be interpreted to allow an individual – or his or her heirs – to control the use of an individual’s identity in books, magazines, photographs, audiovisual works, etc. This would have had a chilling effect on AAP members’ ability to create and distribute works involving disagreeable depictions of individuals. The bill would also have restricted the offer of images currently available to AAP members to include in works they edit and distribute. In addition, the passage of A8155 would have likely hampered AAP members’ ability to license film rights because exposure to right of publicity liability would discourage film and TV producers from pursuing biographical, historical or even fictionalized projects involving real people and events. In sum, the passage of A8155 would have disrupted the functioning of New York’s heavily interconnected media ecosystem.
AAP, together with key contributors to New York’s economy and culture, commends the New York Assembly for rejecting legislation that threatens First Amendment and copyright protections.