What Does New York’s New Post Mortem Publicity Law Protect?

April 07, 2021- Newly signed post-mortem rights of publicity legislation in New York will begin to apply to those who are deceased after May 29, 2021.  Dentons explains what this law means for New Yorkers, specifically in regard to Digital Replicas and Deepfakes. The law will protect a person’s rights of publicity (a right inherent in the commercial value of a person’s identity) that have commercial value at the time of their death or resulting from their death.

The new rights will extend 40 years after the death if the decedent was living in New York at the time of their death. The right is transferable and descendible thus it can be transferred by legal instrument. The right however, is not absolute and has exceptions for certain expressive rights plus for satire, comment, parody or criticism.   In order to bring an action for the use of a decedent’s rights, the decedent’s successors in interest must  register the claimed right with New York’s Secretary of State.

The law also tackles new issues that have proliferated through technological advancement. With respect to digital replicas, purposefully realistic duplicates of an individual such as holograms, the legislation prohibits their use without consent. For Deepfakes—an artificial intelligence technique that realistically superimposes an individually into video, text, or audio material—the legislation protects against acts that the individual did not perform or that were altered.

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