New York Governor Andrew Cuomo recently signed into law New York Senate Bill S5959D which extends protection for the right of publicity 40 years after the death of the celebrity in question. This means that the heirs to a deceased celebrity’s right to publicity will have the ability to stop unauthorized use of the celebrity’s likeness. The courts have long acknowledged that a celebrity, whether an actor, singer, athlete, etc., has commercial value in their likeness that is theirs to exploit.
The right of publicity is not federal law—it is state law only and not every state has adopted a right of publicity statute. Right of publicity statutes have become more common as computer technology has advanced, particularly with the advent of computer-generated imagery (“CGI”). It is not surprising that states like California, New York and Illinois adopted some of the earliest right of publicity statutes. Because the right of publicity is a state-level statute, the parameters of the right are not the same from state to state. In some states, the right of publicity ends with an individual’s death. Other statutes protect the right beyond the lifetime of the deceased but the actual term varies state to state.
The right of publicity has been in the news in the last few years. The Michael Jackson estate is currently litigating a dispute with the IRS over the value of Jackson’s right of publicity and the amount of taxes that must be paid on that value. On the other hand, the Robin Williams estate made waves in the legal community over the clever terms of his estate plan. Williams donated his right to publicity to a nonprofit organization which, according to the terms of the gift, cannot use his likeness for a set number of years after his death. Because he donated it to a nonprofit, any use the nonprofit makes of it will not be taxable income. Additionally, the Williams estate would get a charitable deduction for the value of his right of publicity.
For an interactive map showing which states have adopted a right of publicity and links to their statutes, please see https://rightofpublicity.com/statutes. The link also includes states that have proposed legislation.