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New York Legislators Trying To Make A Bad Publicity Law Even Worse

If there's been a good right of publicity law enacted, we've yet to see it. Ostensibly enacted to prevent celebrities' likenesses, words, etc. being used in way they wouldn't approve of, the laws are usually deployed by dead celebrities' families to censor speech. Most of the censorship activity focuses on commercial use of dead public figures, implying endorsements from beyond the grave. But the laws have also been abused to shut down biographical projects and, in one notable case, was used by a deposed and jailed dictator who though Activision should have paid him something for using his likeness in a Call of Duty game.

This is why the EFF is warning people about another right of publicity bill being quickly and quietly ushered through the New York state legislature.

The New York State Legislature is considering a bill that would radically reshape its right of publicity law. Assembly Bill A08155 [PDF] would dramatically expand New York’s right of publicity, making it a property right that can be passed on to your heirs – even if you aren’t a New York resident. The bill was introduced less than two weeks ago and is being rushed through without any hearings. EFF is urging legislators to slow down before passing an unnecessary law that would threaten the freedom of expression of individuals, activists, artists, and journalists around the United States.

New York already has an abusable right of publicity law. This bill would make it worse. It expands the definition of "likeness" to include things like "mannerisms" and "gestures." It contains very few protections for free speech. It adds 40 years of postmortem protection, meaning those most likely to benefit from the law aren't those whose likeness is being used/abused, but rather their heirs.

Perhaps worst of all, it expands the law's jurisdiction, allowing out-of-state celebrities to file suits if their likenesses were used in the state of New York. This alone will encourage more litigation (even if most is dismissed early on), thanks to the internet's lack of boundaries. Simply posting something on a website anywhere could place the person posting it at risk if the website is accessible in New York. It's an invitation for forum-shopping, disguised as an extra layer of protection for public figures.

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