On Nov. 30, Governor Andrew Cuomo signed into law new legislation aimed at protecting against commercial exploitation or unauthorized use of a dead person’s name, picture, voice or signature, giving only the families of such people the right to use them.
The law also introduces new penalties for publishing revenge porn and “deep fake” porn.
“In the digital age, deceased individuals can often fall victim to bad actors that seek to capitalize on their death and profit off of their likeness after they pass away – that ends today,” said Gov. Cuomo. “This legislation is an important step in protecting the rights of deceased individuals while creating a safer, fairer New York for decades to come.”
Sponsored by State Sen. Diane Savino and Assemblywoman Helene Weinstein, the bill (S5959-d /A.5605-c) passed with unanimous approval in the Senate, with all 60 senators on the floor voting aye.
Helene Weinstein
The first portion of the law outlines New York state’s definition of every New Yorker’s “Right of Publicity.” According to a press release sent out by Cuomo’s press office, the Right of Publicity refers to “every individual’s inherent right to control the commercial use of his or her personal characteristics.”
Under this new law, the use of a dead person’s image, voice, or signature must be done so with prior consent from that person’s family.
The only case in which this protection does not apply is if the person in question had already contractually signed away use of their likeness to another party while still alive.
The law also stops providing protection for the unauthorized usage of a deceased person’s likeness 40 years after their death. Anybody who uses the likeness of a deceased person without prior authorization from their families, or without ownership of that person’s Right to Publicity, is capable of being sued for damages.
The new law stipulates that when a person dies, a person’s family member can file a claim for possession of the deceased person’s Right of Publicity with New York’s Secretary of State.
The second portion of the law focuses on providing legal recourse for those who fall victim to someone publishing pornographic material involving their likeness without their consent. This is meant to crack down on both revenge porn and deep fake porn.
Revenge porn is when pornographic material is released by one of the actors, usually a former sexual partner, without the consent of the other, as a means of embarrassing, blackmailing, or tarnishing their reputation.
Revenge porn usually results from situations in which an ex-partner is angry at their former partner for breaking up with them, releasing the pornographic material as a means of “getting back” at them.
Deep fake porn is a relatively new phenomena in which pornography is created using video software to edit a person’s face onto another person’s body, usually without their permission, thus creating the illusion of that person having participated in pornographic acts, or posing nude.
Deep fake porn usually uses the faces of celebrities to create realistic looking pornographic content which some unwitting viewers might perceive to be real, thus damaging the celebrity’s reputation.
The new law stipulates that anyone who publishes pornographic material of another person, either real or simulated, without that person’s consent, is able to be sued for damages.
While the law touches on three distinct issues; unauthorized usage of a dead person’s likeness, revenge porn and deep fake porn, Savino argues that they are all tied together by a need for privacy and full ownership of one’s own image.
“The principle that ties them altogether is the right to privacy,” said Savino in a phone interview with the Gazette. “I am who I am, I own who I am, and unless I want to give away the rights of who I am, no one can own who I am.”
The law is to be an amendment of several pre-existing New York Civil Rights laws that focus on New Yorkers’ rights to privacy, with the original sections of the law being first amended in 1903. According to Savino, the impetus for passing new amendments to these existing laws was the changes that new technology has brought to modern society.
“It’s taken almost 16 years to update the bill since I got elected, and think how much the world has changed in the last 16 years?” said Savino. “The world has changed so much because of technology.”
Savino hopes that the law will help to set an example for other states across the United States.
“This will hopefully become a standard in the country,” said Savino.
