This page covers legal information specific to the State of New York. For more general information, see the Legal Guide page on Using the Name or Likeness of Another; for other states, see State Law: Right of Publicity.
New York has codified its right of publicity as part of its "Right of Privacy" statute, at Article 5 of the N.Y. Civil Rights Law. You should familiarize yourself with Sections 50 and 51, the primary statutory provisions for right of publicity actions. New York does not recognize a separate common law right of publicity.
Relationship between Sections 50 and 51
The two sections, 50 and 51, describe similar rights but provide for different enforcement mechanisms. Section 50 makes a right of publicity violation a misdemeanor, while Section 51 provides a private cause of action. Though right of publicity lawsuits in New York often reference both sections, Section 51 is the primary (and more detailed) provision for most purposes.
What is protected?
Section 51 provides protection for a person's:
- picture, and
Names: The right of publicity statute does not protect corporate or partnership names. Jaggard v. R.H. Macy, 26 N.Y.S. 829 (N.Y. Sup. Ct. 1941). New York courts have long recognized that "there are other remedies" for the unauthorized use of corporate names. Rosenwasser v. Ogoglia, 158 N.Y.S. 56 (N.Y. App. Div. 1916). This lack of protection for trade names has been held to bar a claim under Section 51 for misappropriation of assumed names, like "Dr. Seuss." Geisel v. Poynter Products, Inc., 195 F. Supp. 331, 355-56 (S.D.N.Y. 1968); but see DeClemente v. Columbia Pictures, 860 F. Supp. 30, 53 (E.D.N.Y. 1994) (suggesting that a stage name might be protected if it is "closely and widely identified" with its user).
Portraits and Pictures: Courts have construed the portrait/picture provisions of the statute somewhat broadly, to include "any recognizable likeness, not just an actual photograph." Burck v. Mars, Inc., 571 F. Supp. 2d 446, 451 (S.D.N.Y. 2008). The statute covers a representation if it "conveys the essence and likeness of an individual," even if the representation is not completely photo-realistic. Onassis v. Christian Dior-New York, 472 N.Y.S. 2d 254, 261 (N.Y. Sup. Ct. 1984). Sculptures, mannequins, and other three-dimensional "likenesses" may be covered. Young v. Greneker Studios, 26 N.Y.S. 2d 357 (N.Y. Sup. Ct. 1941).
Voice: "Voice" was added to § 51 (but not to § 50) in 1995. Thus, one must be cautious of pre-1995 cases like Maxwell v. N.W. Ayer, Inc, 605 N.Y.S.2d 174, which dismiss voice-related right of publicity claims.
Rights of deceased persons
New York does not recognize a posthumous right of publicity. Mirone v. MacMillan, 894 F.2d 579, 585 (2d Cir. 1990).
What constitutes a violation?
To violate § 51, a use of a person's identity must be:
- Within New York state;
- For advertising or trade purposes; and
- Without written consent.
The focus on advertising and trade means that a use designed to solicit sales of products or services is forbidden. But this category of advertising uses is somewhat narrow; § 51 contains a long list of exceptions to the right of publicity, which include protections for:
- professional photographers against suits by their subjects;
- the use of an author's name, in connection with the work of that author;
- owners of copyrights in sound recordings; and
- using a person's identity in connection with products, if the person manufactured or sold those products under their identity.
There is also a significant newsworthiness exception. A defendant is not liable for using a person's identity in connection with a "newsworthy" article, such as a newspaper article. New York courts have interpreted "newsworthy" broadly, to include "a wide variety of articles on matters of public interest," not just "hard news" articles. Messenger v. Gruner + Jahr Printing, 94 N.Y. 2d 436, 441-42 (N.Y. 2000). Newsworthy uses of a person's identity do not violate the right of publicity statute, even though the publisher intends them to sell copies, attract advertising, or otherwise produce revenue.
Advertisements that promote an otherwise privileged use of a person's identity are also exempt from liability. So, for example, if a magazine legitimately publishes photographs of a model, it can use those pictures to attract subscribers. Lerman v. Flynt Distributing, 745 F.2d 123, 130-31 (2d Cir. 1984).
In some circumstances, the First Amendment "actual malice" doctrine may affect a case's outcome. Courts have held that defendants may forfeit the newsworthiness defense if the article in question contains a "severe" degree of falsity. Lerman v. Flynt Distributing, 745 F.2d 123, 132-33 (2d Cir. 1984) If the plaintiff is a public figure, though, the defendant can only be held liable if he published the falsehoods with actual malice. Id. at 135-38.
Section 51 provides for both injunctive relief and compensatory damages. A plaintiff can seek an injunction against continued use of her identity, and can recover monetary damages to compensate for the harm caused by past uses. The damage award primarily compensates for emotional distress. See Garis v. Uncut-RawTV, No. CV 06–5031, 2011 WL 4404035, at *3-4 (E.D.N.Y, July 5, 2011).
Section 51 also provides for punitive or exemplary damages, if certain conditions are met. A plaintiff can recover exemplary damages if the defendant knew that the plaintiff had not consented to the use of her identity. Id. at 4-5. Courts may award exemplary damages if necessary to deter future violations of Section 51.
Statute of limitations
Claims under Section 51 of the Civil Rights Law are subject to a one-year statute of limitations. N.Y. Civ. Prac. Law & Rules, § 215(3).