DMLA MEMORANDUM IN OPPOSITION, NY RIGHT OF PUBLICITY BILL

Senate Bill No. 5650/ Assembly Bill No. 7904The Digital Media Licensing Association (“DMLA”), strongly opposes S.5650/A.7904. This right of publicity bill would grant a seventy-year retroactive and descendible right of publicity to all deceased residents of New York State. This proposed legislation would cause serious economic impact to the image licensing industry in New York State (a multi-billion dollar industry worldwide) and unconstitutionally deprive photographers and film owners the right to exploit their property and copyright interests in their still and motion images. Joining our opposition is the American Society of Media Photographers (“ASMP”),^[1] Professional Photographer of America (“PPA”)^[2] and the National Press Photographers Association (“NPPA”)^[3]. About DMLADMLA is a trade association representing the interests of entities who license still and motion images to the media, among many other users. Its members represent the interests of thousands of photographers and the copyrights in millions of images. Many images published in magazines, newspapers, news broadcasts, textbooks, brochures, or in advertisements, in print or on-line, were licensed by a member of DMLA. New York is home to many of DMLA’s members and all members, regardless of location, serve a crucial role in supplying publishers, media companies and advertisers located within New York with imagery that reflects our world, art and culture.Any retroactive statute is an unconstitutional taking favoring the economic interests of out-of-state corporations over New York media companies.New York, as the center of the media industry, has always erred in favor of protecting the First Amendment rights of those who own, license and publish images. To substantially expand the breadth of New York’s statutory right of publicity and create a burdensome retroactive statute will have a crippling and chilling effect on expressive speech. This proposed legislation would require the representatives and owners of valid federal copyrights in photographs that depict any New York State domiciliary who died since 1945 to obtain permission from heirs for any use that is considered a “commercial purpose.” It is not limited to celebrities but applies to anyone who died as a New York domiciliary and is depicted in an image or audio visual recording. As no descendible right of publicity has previously existed, these deceased persons have never specifically transferred this right. Instead of heirs inheriting these rights, it is likely that corporations with no interest in New York State, and whose only interest is exploiting publicity rights and restricting licensors from contractually dealing with preexisting images, will benefit from this proposed law. Photographers and licensing representatives will suddenly lose a right they have had for more than 110 years, an unconstitutional taking. The proposed bill is ambiguous and vague and will invite meritless litigation.The language of this bill is ambiguous and vague, and invites unnecessary and burdensome litigation. Under the current law, NY Civil Rights Law § 50 & 51, the only type of use that requires consent of the person depicted is when the image is used for “advertising” or “trade” purposes. This proposed bill replaces 110 years of judicial interpretation of what constitutes an advertising or trade purpose with the ambiguous term “commercial purpose,” with only limited exceptions. Most importantly, the language in Section 34, Exemptions on Use Restrictions, is ambiguous and fails to provide a clear exemption for expressive works that are currently protected. Even worse it conditions the exemption for expressive works where the work “does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York state constitution.” The bill fails to define what would make an image or an individual’s likeness “primarily commercial” or “transformative” and forces the creator of an expressive work to establish that the work is constitutionally protected. The proposed legislation unconstitutionally restricts visual images and other expressive works and will have a chilling affect on image creators and licensors and those that rely on access to visual imagery in creating new works.The proposed bill will stifle innovation, increase the cost of licensing images and result in futile searches for heirs of long deceased persons domiciled in New York.The proposed legislation will stifle new and innovative ways of communicating with images which may require advertising support for publication. The ambiguity in the statutory language will result in an effort to obtain unnecessary consents which will be fraught with difficult research, may be futile, and cause unreasonable expense and delay. This will increase the costs and burdens of licensing images requiring increased usage fees. Members of these associations can ill afford these additional costs and the end result will be fewer images licensed, and fewer jobs in New York State. With the speed in which news and entertainment products are created today, to introduce new roadblocks for images of people long deceased is unjustified and raises serious First Amendment considerations.The unintended consequences of departing from over 110 years of clear law is too great to merely satisfy the desire of a few celebrities agents that want to unreasonably exploit New York media companies and the provider of the images that they rely on for rich content. The chilling effect will be immediate and overwhelming.For the above stated reasons, the members of DMLA, ASMP, NPPA and PPA strongly oppose S.5650/A.7904 and urge that it be defeated. [1] ASMP was established in 1944 to protect and promote the interests of professional photographers who earn their living by making photographs intended for publication. There are more than 6900 members of ASMP, organized into 39 local chapters across the United States, with members representing literally every genre of professional publication photography.[2] Founded in 1869, Professional Photographers of America (“PPA”) is the world’s oldest and largest association for professional photographers.  PPA’s membership consists of more than 29,000 direct members and an additional 20,000 members from more than 130 affiliated organizations.  In total, PPA’s membership reach includes some 50,000 professional photographers.[3] Since its founding in 1946, the NPPA has been the Voice of Visual Journalists vigorously advocating for and protecting the rights of journalists. Its approximately 6,000 members include still and television photographers, editors, students, and representatives of businesses serving the visual journalism community.