A 8611: Clarifies the right of publicity including the definitions of who and what qualifies as a digital replica; provides guidance as to digital replicas that do not violate an individual or deceased individual's right to publicity; expands the statute of limitations for an action brought for violating an individual's right to publicity.

  
  STATE OF NEW YORK ________________________________________________________________________ 8611 2025-2026 Regular Sessions  IN ASSEMBLY May 22, 2025 ___________ Introduced by M. of A. SIMONE, CRUZ -- read once and referred to the Committee on Judiciary AN ACT to amend the civil rights law, in relation to clarifying the right of publicity; and to amend chapter 304 of the laws of 2020 amending the civil rights law relating to establishing the right of publicity and to providing a right of action for unlawful dissem- ination or publication of a sexually explicit depiction of an individ- ual, in relation thereto The People of the State of New York, represented in Senate and Assem- bly, do enact as follows: 1 Section 1. Section 50-f of the civil rights law, as added by chapter 2 304 of the laws of 2020, subparagraph v of paragraph d of subdivision 2 3 and subdivision 10 as added and subdivisions 11, 12 and 13 as renumbered 4 by chapter 709 of the laws of 2022, is amended to read as follows: 5 § 50-f. Right of publicity. 1. For purposes of this section: 6 a. ["deceased performer" means a deceased natural person domiciled in 7 this state at the time of death who, for gain or livelihood, was regu- 8 larly engaged in acting, singing, dancing, or playing a musical instru- 9 ment. 10 b.] "deceased personality" means any deceased natural person domiciled 11 in this state at the time of death [whose name, voice, signature, photo- 12 graph, or likeness has commercial value at the time of his or her death, 13 or because of his or her death, whether or not during the lifetime of 14 that natural person the person used his or her name, voice, signature, 15 photograph, or likeness on or in products, merchandise, or goods, or for 16 purposes of advertising or selling, or solicitation of purchase of, 17 products, merchandise, goods, or services]. 18 [c.] b. "digital replica" means a [newly created, original,] compu- 19 ter-generated, [electronic performance by an individual in a separate 20 and newly created, original expressive sound recording or audiovisual 21 work in which the] highly realistic electronic representation that is EXPLANATION--Matter in italics (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD11870-01-5 
 A. 8611 2 1 readily identifiable as the voice or visual likeness of an individual 2 [did not actually perform,] that is [so realistic that a reasonable 3 observer would believe it is] embodied in a sound recording, image, 4 audiovisual work, or transmission in which the actual individual either 5 did not actually perform or appear, or the actual individual did perform 6 or appear, but the fundamental character of the performance [by the 7 individual being portrayed and no other individual] or appearance has 8 been materially altered. A digital replica does not include the elec- 9 tronic reproduction, [computer generated] use of a sample of one sound 10 recording or audiovisual work into another, remixing, mastering, or 11 [other] digital remastering of [an expressive] a sound recording or 12 audiovisual work [consisting of an individual's original or recorded 13 performance, nor the making or duplication of another recording that 14 consists entirely of the independent fixation of other sounds, even if 15 such sounds imitate or simulate the voice of the individual] authorized 16 by the copyright holder. 17 [d.] c. "sound recordings" are works that result from the fixation of 18 a series of musical, spoken, or other sounds, but not including the 19 sounds accompanying a motion picture or other audiovisual work, regard- 20 less of the nature of the material objects, such as disks, tapes, or 21 other phonorecords, in which they are embodied. 22 d. "audiovisual work" means a work that consists of a series of 23 related images that are intrinsically intended to be shown by the use of 24 machines or devices, including projectors, viewers, or electronic equip- 25 ment, together with accompanying sounds, if any, regardless of the 26 nature of the material objects, including films or tapes, in which the 27 works are embodied. 28 2. a. Any person who uses a deceased personality's name, voice, signa- 29 ture, photograph, or likeness, in any manner, on or in products, 30 merchandise, or goods, or for purposes of advertising or selling, or 31 soliciting purchases of, products, merchandise, goods, or services, 32 without prior consent from the person or persons specified in subdivi- 33 sion [four] five of this section, shall be liable for any damages 34 sustained by the person or persons injured as a result thereof. 35 b. [Any person who uses a deceased performer's digital replica in a 36 scripted audiovisual work as a fictional character or for the live 37 performance of a musical work shall be liable for any damages sustained 38 by the person or persons injured as a result thereof if the use occurs 39 without prior consent from the person or persons in subdivision four of 40 this section, if the use is likely to deceive the public into thinking 41 it was authorized by the person or persons specified in subdivision four 42 of this section. A use shall not be considered likely to deceive the 43 public into thinking it was authorized by the person or persons speci- 44 fied in subdivision four of this section if the person making such use 45 provides a conspicuous disclaimer in the credits of the scripted audi- 46 ovisual work, and in any related advertisement in which the digital 47 replica appears, stating that the use of the digital replica has not 48 been authorized by the person or persons specified in subdivision four 49 of this section. 50 c.] In any action brought under this section: 51 i. the person who violated the section shall be liable to the injured 52 party or parties in an amount equal to the greater of two thousand 53 dollars or the compensatory damages suffered by the injured party or 54 parties, as a result of the unauthorized use, and any profits from the 55 unauthorized use that are attributable to such use and are not taken 56 into account in computing the compensatory damages. 
 A. 8611 3 1 ii. in establishing profits under this subdivision, the injured party 2 or parties shall be required to present proof only of the gross revenue 3 attributable to the unauthorized use, and the person who violated this 4 section is required to prove [his or her] their deductible expenses. 5 iii. punitive damages may also be awarded to the injured party or 6 parties. 7 [d.] c. For purposes of this subdivision: 8 i. it shall not be a violation of paragraph a of this subdivision if 9 the work is a play, book, magazine, newspaper, or other literary work; 10 musical work or composition; work of art or other visual work; work of 11 political, public interest, educational or newsworthy value, including 12 comment, criticism, parody or satire; audio or audiovisual work, radio 13 or television program, if it is fictional or nonfictional entertainment; 14 or an advertisement or commercial announcement for any of the foregoing 15 works. 16 ii. [it shall not be a violation of paragraph b of this subdivision if 17 the work is of parody, satire, commentary, or criticism; works of poli- 18 tical or newsworthy value, or similar works, such as documentaries, 19 docudramas, or historical or biographical works, regardless of the 20 degree of fictionalization; a representation of a deceased performer as 21 himself or herself, regardless of the degree of fictionalization, except 22 in a live performance of a musical work; de minimis or incidental; or an 23 advertisement or commercial announcement for any of the foregoing works. 24 iii. it shall not be a violation of this section if the use of a name, 25 voice, signature, photograph, or likeness occurs in connection with any 26 news, public affairs, or sports program or account, regardless of 27 format, medium or means of transmission, or any political campaign. 28 iv. it shall not be a violation of this section if the use is of a 29 name, voice, signature, photograph, or likeness in a commercial medium 30 solely because the material containing the use is commercially sponsored 31 or contains paid advertising or product placement, or includes within it 32 a use in connection with a product, article of merchandise, good, or 33 service. Rather, it shall be a question of fact whether or not the use 34 of the deceased personality's name, voice, signature, photograph, or 35 likeness was so directly connected with the commercial sponsorship or 36 with the paid advertising or product placement as to constitute a use 37 for which consent is required under this subdivision. 38 v.] works identified pursuant to this paragraph shall not violate this 39 section, regardless of the medium or means of transmission. 40 [e. In] iii. in relation to a violation of paragraph a of this subdi- 41 vision, if a work that is protected under paragraph d of this subdivi- 42 sion includes within it a use in connection with a product, article of 43 merchandise, good, or service, this use shall not be exempt under para- 44 graph [d] c of this subdivision, notwithstanding the unprotected use's 45 inclusion in a work otherwise exempt under paragraph [d] c of this 46 subdivision, if the claimant proves that this use is so directly 47 connected with a product, article of merchandise, good, or service as to 48 constitute an act of advertising, selling, or soliciting purchases of 49 that product, article of merchandise, good, or service by the deceased 50 personality without prior consent for the use under paragraph a of this 51 subdivision from the person or persons specified in subdivision [four] 52 five of this section. 53 3. a. A person who produces, distributes, or makes available the 54 digital replica of a deceased personality's voice or likeness in an 55 expressive audiovisual work or sound recording without prior consent 56 from a person specified below shall be liable to any injured party in an 
 A. 8611 4 1 amount equal to the greater of ten thousand dollars or the actual 2 damages suffered by a person controlling the rights to the deceased 3 personality's likeness. 4 b. For purposes of this section, it shall not be a violation of para- 5 graph a of this subdivision if: 6 i. the applicable digital replica is produced or used in a bona fide 7 news, public affairs, or sports broadcast or account, provided that the 8 digital replica is the subject of, or is materially relevant to, the 9 subject of such broadcast or account; 10 ii. the applicable digital replica is produced or used consistent with 11 the public interest in bona fide commentary, criticism scholarship, 12 satire, or parody; 13 iii. the applicable digital replica is a representation of the appli- 14 cable individual as the individual in a documentary or in a historical 15 or biographical manner, including some degree of fictionalization, 16 unless: 17 A. the production or use is intended to create, and does create, the 18 false impression that the work is an authentic recording in which the 19 individual participated; 20 B. the digital replica is embodied in a musical sound recording that 21 is synchronized to accompany a motion picture or other audiovisual work 22 except to the extent that the use of digital replicas is protected by 23 the First Amendment to the Constitution of the United States; 24 iv. the use is fleeting or incidental; 25 v. the use is in an advertisement or commercial announcement for a 26 work described in subparagraphs i to iii of this paragraph, inclusive. 27 4. The rights recognized under this section are property rights, free- 28 ly transferable or descendible, in whole or in part, by contract, 29 license, gift, or by means of any trust or any other testamentary 30 instrument. In the absence of an express transfer in a testamentary 31 instrument of the deceased personality's rights in [his or her] their 32 name, voice, signature, photograph, or likeness, a provision in the 33 testamentary instrument that provides for the disposition of the residue 34 of the deceased personality's assets shall be effective to transfer the 35 rights recognized under this section in accordance with the terms of 36 that provision. The rights established by this section shall also be 37 freely transferable or descendible by contract, license, gift, trust, or 38 any other testamentary instrument by any subsequent owner of the 39 deceased personality's rights as recognized by this section. Nothing in 40 this section shall be construed to render invalid or unenforceable any 41 contract entered into by a deceased personality during [his or her] 42 their lifetime by which the deceased personality assigned the rights, in 43 whole or in part, to use [his or her] their name, voice, signature, 44 photograph, or likeness. 45 [4.] 5. The consent required by this section shall be exercisable by 46 the person or persons to whom the right of consent, or portion thereof, 47 has been transferred in accordance with subdivision [three] four of this 48 section, or if no transfer has occurred, then by the person or persons 49 to whom the right of consent, or portion thereof, has passed in accord- 50 ance with subdivision [five] six of this section. 51 [5.] 6. Subject to subdivisions [three and] four and five of this 52 section, the rights under this section of an individual dying intestate 53 shall be distributed under the laws of intestate succession, and the 54 rights and remedies of this article may be exercised and enforced by a 55 person or persons who possess at least a fifty-one percent interest of 56 the individual's rights under this section. Such persons shall make a 
 A. 8611 5 1 proportional accounting to, and shall act at all times in good faith 2 with respect to, any other person in whom the rights being enforced have 3 vested. 4 [6.] 7. If any deceased personality does not transfer [his or her] 5 their rights under this section by contract, or by means of a trust or 6 testamentary instrument, and there are no surviving persons as described 7 in subdivision [five] six of this section, then the rights set forth in 8 subdivision two of this section shall terminate. 9 [7.] 8. a. Any person claiming to be a successor in interest to the 10 rights of a deceased personality under this section or a licensee there- 11 of may register that claim with the secretary of state on a form 12 prescribed by the secretary of state and upon payment of a fee, which 13 the secretary of state shall set by rule. The form shall be verified and 14 shall include the name and date of death of the deceased personality, 15 the name and address of the claimant, the basis of the claim, and the 16 rights claimed. A successor in interest to the rights of a deceased 17 personality under this section or a licensee thereof shall not have a 18 cause of action for a use prohibited by this section that occurs before 19 the successor in interest or licensee registers a claim of the rights. 20 b. Upon receipt and after filing of any document under this section, 21 the secretary of state shall post the document along with the entire 22 registry of persons claiming to be a successor in interest to the rights 23 of a deceased personality or a registered licensee under this section 24 upon the secretary of state's internet website. 25 c. Claims registered under this subdivision shall be public records. 26 [8.] 9. An action shall not be brought under this section by reason of 27 any use of a deceased personality's name, voice, signature, photograph, 28 or likeness occurring after the expiration of [forty] seventy years 29 after the death of the deceased personality. 30 [9.] 10. Nothing in this section shall apply to the owners or employ- 31 ees of any medium used for advertising, including, but not limited to, 32 newspapers, magazines, radio and television networks and stations, cable 33 television systems, billboards, and transit advertisements, by whom any 34 advertisement or solicitation in violation of this section is published 35 or disseminated, unless it is established that the owners or employees 36 had actual knowledge by prior notification of the unauthorized use of 37 the deceased performer's digital replica or deceased personality's name, 38 voice, signature, photograph, or likeness as prohibited by this section. 39 [10.] 11. Nothing in this section shall apply to a person that offers 40 a service that displays, offers for sale or license, sells or licenses a 41 work of art or other visual work, or audiovisual work, to a user, 42 provided the terms of such sale or license do not authorize such user to 43 engage in acts that constitute a violation of this section. 44 [11.] 12. The provisions of this section are in addition to, but shall 45 not supersede, any other rights or remedies available in law or equity. 46 [12.] 13. This section shall apply to the adjudication of liability 47 and the imposition of any damages or other remedies in cases in which 48 the liability, damages, and other remedies arise from acts occurring 49 directly in this state. For purposes of this section, acts giving rise 50 to liability shall be limited to the use, on or in products, merchan- 51 dise, goods, or services, or the advertising or selling, or soliciting 52 purchases of, products, merchandise, goods, or services prohibited by 53 this section. 54 [13.] 14. Nothing in this section shall be construed to limit, or to 55 enlarge, the protections that 47 U.S.C. § 230 confers on an interactive 
 A. 8611 6 1 computer service for content provided by another information content 2 provider, as such terms are defined in 47 U.S.C. § 230. 3 § 2. Section 3 of chapter 304 of the laws of 2020 amending the civil 4 rights law relating to establishing the right of publicity and to 5 providing a right of action for unlawful dissemination or publication of 6 a sexually explicit depiction of an individual, is amended to read as 7 follows: 8 § 3. This act shall take effect on the one hundred eightieth day after 9 it shall have become a law[, and]; provided that the provisions of 10 section 50-f of the civil rights law as added by section one of this act 11 shall apply to all living individuals and to any deceased individuals 12 who died [on or after] prior to and after such date. 13 § 3. This act shall take effect immediately.