What the people of New York will tolerate in their state continues to amaze me! Freedom of speech and freedom of the press is under attack and new legislation, if passed, would change the way journalists report individual’s names, making names effectively the same as property, according to the Electronic Frontier Foundation (EFF).
According to EFF, ” Assembly Bill 8155-B (and its counterpart Senate Bill 5857-B) 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 is sponsored by Democrat Joseph Morelle and was first introduced in the state legislature on May 31, 2017.
“The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her name, likeness, or identity for commercial purposes,” writes Daniel Nazer, senior staff attorney for EFF. “A limited version of this right makes sense—for example, allowing you to stop a company falsely claiming that you endorse its products. But the right of publicity has been expanded in recent years thanks to misguided legislation and court decisions. In some states, the right covers just about any speech that even “evokes” a person’s identity.”
“Celebrities have brought right of publicity cases against movies, rap lyrics, magazine features, and computer games.,” he added. “The right of publicity has even been invoked to silence criticism of celebrities. Since the right of publicity can impact a huge range of speech, any changes to the law should be considered carefully.”
EFF points out several problems with the bill.
- Reframing the Right of Publicity as a Property Right: The bill would reframe a well-established privacy right into a freely transferable property right. But the right of publicity only make sense as a cause of action that gives people control over their own image. In this sense, it can be seen a form of false advertising law. When the right is treated like property that can be assigned, celebrities can lose control. For example, a celebrity might assign publicity rights to settle a debt and then find her image pasted over advertisements for products or causes the celebrity finds reprehensible.
- Pressuring heirs to commercialize the image of deceased relatives: In a large estate, an inheritable and transferable right of publicity may add to the tax burden and thus lead heirs with no choice but to pursue advertising deals or some other commercial venture.
- Creation of an unprecedented worldwide right: The bill would turn the State of New York into a litigation destination for celebrities from all over the world.
- Unconstitutionally vague provisions: The bill includes a provision prohibiting use of a digital replica in a “pornographic work.” But the bill does not include a definition of pornographic work and that term does not have a settled legal meaning (and appears to be broader than the First Amendment obscenity standard). Many works of art include R-rated depictions of real persons, including public figures who died within 40 years of the film being produced. These include award-winning movies such as Henry and June, Before Night Falls, and Milk. The bill’s vague statutory language will likely chill creative works protected by the First Amendment.
Nazer also pointed out that the bill Targets non-profit uses.
“The bills would allow claims to be brought ‘without regard to whether the use or activity is for profit or not-for-profit’ potentially chilling a wide range of non-profit speech and activism inspired by deceased individuals,” he wrote in a memo to New York representatives. “Worse, the bills would allow exemplary damages for non-profit uses that cause no economic harm.”
Jennifer Rothman also points out a few other problems with the amended bill.
An amended version of the bill was introduced yesterday. The amended version suffers from most of the same failings as the prior versions, and amendments. It jeopardizes a vast array of creative works, and biographical works, and continues to jeopardize our ability to maintain ownership of our own identities by creating a law that allows creditors, ex-spouses, and over-reaching managers―among others―to take ownership of a person’s name, likeness, voice, and “persona.”
Strangely, the drafters clearly recognized some of the dangers of such transferability by for the first-time adding in a limit on transfers of children’s rights of publicity so parents cannot sell off their children’s own identities forever. Nevertheless, the bill completely fails to protect those over 18 years of age from the very same dangers of such transferability. For a discussion of why this is so dangerous particularly to SAG-AFTRA members (the organization pushing this bill), see my op-ed on why “Only Robin Wright Should Own Robin Wright.”
The bill also continues to grant a windfall to heirs of dead celebrities without ever justifying why they should receive one at the expense of the public. Nor does the bill address the significant estate tax danger that can force the commercialization of the dead against both their and their families’ wishes.
The bill also continues to open the doors of New York courts to all plaintiffs regardless of their domicile.
Nazer & EFF have called on state representatives to reject both bills saying that the legislation is ” too important and far-reaching to be rushed through this session without careful review and public debate.”
A broad coalition of companies and free speech advocates opposes these changes to New York’s right of publicity.
These people are trying to silence any opposition to what they are doing. They are devious and cunning in their approach, acting as if they care about people’s privacy when what they are really after is more control and silencing their opposition.
Article posted with permission from Freedom Outpost
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