By Mark Bartholomew
We don’t need the rich and famous to get another perk from the system. So why are our elected officials encouraging just that? A new bill in the New York State Assembly proposes to supplement New York’s century-old “right of privacy” law with a new “right of publicity.”
The new law would let the famous exert more control over how their images are used by others, giving them veto power when someone else references their name, picture, or certain other characteristics for “advertising purposes or purposes of trade.” This is a bad law. It would be a boon for stars that want sell off rights in their identities to others, but it would harm authors, filmmakers, video game designers, and everyday citizens.
The biggest innovation in the proposed law would be extending the right to control outsider use of one’s identity for 40 years after death. Currently, in New York, when famous people die, their ability to exclusively monetize their own image ends. The new law would let the famous effectively reach beyond the grave, giving their heirs the ability to continue to cash in on fame decades after an entertainer or sports figure has passed away.
What’s the point? Surely Jay-Z and Madonna don’t need the promise of a post-mortem income stream to incentivize them to create and appear in public. They have been handsomely compensated for their artistry and public prominence during their lifetimes. Other laws on the books already prevent unscrupulous businesses from misleading the public about a celebrity’s supposed endorsement of a product.
Nor do celebrities need after-death protections of privacy. Other laws meant to safeguard dignity, like the right against defamation, sensibly expire with the individual. That’s because you can’t hurt someone’s feelings after they are dead. Why should the right to prevent unauthorized use of one’s image be any different?
It is true that some other states grant after-death protections to the famous against unauthorized use of their personalities. Celebrities living in California get a 70-year postmortem right. In Tennessee (the home of Elvis Presley), publicity rights can potentially extend on into perpetuity. But just because other states let celebrities pass commercial control of their identities from generation to generation, that doesn’t make it a good idea.
There are plenty of problems our elected officials need to address. But one thing that doesn’t need to take up their time (particularly right before the legislative session is about to end) is expanding legal protections for celebrities – the movie stars and professional athletes that make their home in New York are doing just fine.
Mark Bartholomew is a professor at the University at Buffalo School of Law and the author of “Adcreep: The Case Against Modern Marketing.”