by Nancy Wolff, DMLA Counsel
This week was busy, both New York state and Minneapolis are looking to pass postmortem right of publicity bill’s before the end of the current legislative Â session and everyone leaves for summer vacation. Here in York, every year or two, the company that owns the alleged rights to Marilyn Monroe’s residuary property under her will, attempt to convince the New York State Legislature that New York should be more like California and have a retroactive postmortem right of publicity bill going back seventy years to cover anyone who died domiciled in New York, but in particular Marilyn Monroe. Currently in New York, when you die, your right of publicity dies as well. The problem with this bill is it adopts California language which prohibits commercial use unless you fall under an exception. The language is vague and will result in litigation and additional legal expense in clearing the images. In addition, New York has a long history of a right of publicity law drafted very differently, specifically Â a 110 years of case law that favors publishers and other first amendment uses that would all be lost.
Minnesota is obviously is reacting to the untimely death of the artist Prince. The bill is in fact called PRINCE. In trying to rush through a bill before the end of the session, the proponents wrote a very broad and vague bill, that does not protect expressive works under the First Amendment and potentially could prohibit the sale and licensing of photographs. In addition to being retroactive, the bill would be for a minimum of fifty years and could go in perpetuity if the rights are being exploited. A version of the bill passed the House, but the Senate has put off hearing on the bill until next Monday, as it has received many letters in opposition.
On behalf of DMLA, with the support of various other photography associations, ASMP, and PPA, and PPA, I wrote letters of opposition to both Â New York State and Minnesota. I have a call with a New York State legislature on Monday regarding my comments.
With respect to Minnesota, I am in touch with the Newspaper Association in Minnesota as well as the attorney for the Prince family who is pushing for some legislation. I will keep you updated as to any changes.