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Deepfakes and Rights for the Dead: New York Adds a Post Mortem Publicity Right and Penalizes Sexually Explicit Deepfakes

MSK Client Alert 
December 8, 2020

On Monday, November 30, 2020, New York Governor Andrew Cuomo signed into law legislation (S5959D / A.5605-C, which we’ll refer to as the “Statute”) establishing, among other things, a new post-mortem “right of publicity.”  We explain here the key points to know about the new law.

New York’s new post-mortem right is similar to the existing right of publicity protections afforded to all livingNew Yorkers whose name, portrait, or picture is used for commercial purposes without consent.  See NY Civ. Rts. L. §§50/51.  Rather than modifying New York’s existing protections afforded under New York Civil Rights Law Sections 50 and 51, however, Section 50-f creates a new “right of publicity” specifically for deceased individuals who died domiciled in New York and, at the time of their death, had a commercially valuable identity or personality characteristics—i.e., their name, picture, voice or signature.  See Sec. 50-f(2)(a).  The new provision, Section 50-f, takes effect on May 29, 2021, and affords this right only to a celebrity who dies on or after that date.  Section 50-f provides for compensatory damages, statutory damages, lost profits, and punitive damages for violations of the Statute...

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