Intellectual Property Litigation

On November 30, 2020, New York Governor Andrew Cuomo signed a new right of publicity statute into law, which will take effect 180 days after enactment. The law allows successors in interest of deceased “performers” and “personalities” to sue for the unlicensed use of their “digital replica,” name, likeness, or other identifiers.

Current New York Statutory Right of Privacy

Under New York’s existing right to privacy law, “any person whose name [or likeness] is used within [New York] for advertising [or trade] purposes without . . . written consent” can sue for an injunction and damages. See NY CRL § 51. Thus, the right to privacy statute embodies a kind of proxy right of publicity; that is, a cause of action for the unauthorized use of one’s name or likeness. But because the existing law addresses privacy concerns (which dissipate at death), the rights conferred do not extend postmortem. Also, New York courts have held that the state’s law affords no common law right of publicity—the statutory grant is exclusive.

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