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Legislative Memo

Ken Pokalsky
Vice President
T 518.465.7511, ext. 205
www.bcnys.org

BILL:

S.5857-A (Savino) / A.8155-A (Morelle)

Support

SUBJECT:

Establishes the Right of Publicity for Both Living and Deceased Individuals

 

DATE:

June 20, 2017

 

The Business Council joins a wide and diverse group of interests, ranging from media companies to the NY Civil Liberties Union, that oppose this recently introduced legislation creating a new “right of publicity.”

This legislation, which creates a new property right for persons’ name, voice, signature and “likeness,” including but not limited to “gesture[s] and mannerism[s], and subject others to litigation and damage claims for improper use.

The bill’s extremely broad and vague standards will undoubtedly subject many entities to litigation for unintentional violations.  This would apply to all types of media companies – broadcasters, publishers, web providers and others – as well as other businesses and organizations that engage in advertising, fundraising or other activities.

Even though the bill contains a number of exempted uses of a person’s “right to publicity,” the bill also contains a significant limitation to such exemptions in cases where such use constitutes a “commercial use”, if the replication of the person’s persona is “inextricably intertwined with the right of publicity of such individual,” a newly created standard that could take extensive litigation to sort out. 

The Business Council has heard from numerous members and other stakeholders that have raised concerns about this bill’s unique terms, definitions and provisions, and have raised concerns about the likelihood for significant litigation costs resulting from this proposal.

This bill would negate the state’s century old right of privacy law, and extensive case law that has been developed around it.

In doing so, it will create new and significant legal uncertainty for businesses doing business in New York State, including its extensive media, broadcasting, and advertising industries.

For these reasons, The Business Council strongly opposes adoption of S.5857-A / A.8155-A.