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New York Right to Name and Likeness: Understanding the Laws and Remedies
The right to name and likeness, often called the right of publicity, is a crucial legal concept in New York. It protects an individual's identity—including their name, portrait, and image—from being used for commercial purposes without permission. In a state that is a global hub for media, entertainment, and advertising, these protections are especially significant and frequently litigated. As digital media and online marketing continue to evolve, understanding the nuances of this right is more important than ever for both creators and individuals. This article provides a comprehensive explanation of the legal basis for this right in New York, outlines how to identify an infringement, and details the remedies available to those whose rights have been violated.
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1. New York Right to Name and Likeness Explained
The right to name and likeness, known as the right of publicity, is a legal principle protecting an individual's identity from unauthorized commercial use. Unlike the right to privacy, which shields a person from unwanted public intrusion, the right of publicity is a property right. This distinction means it allows individuals to control and profit from the commercial value of their own identity, much like a copyright or trademark. In New York, this right is not based on common law but is specifically governed by statute, primarily defined within the New York Civil Rights Law.
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In New York, the right to name and likeness is established by Civil Rights Law Sections 50 and 51. These statutes make it a misdemeanor to use the name, portrait, picture, or voice of any living person for "advertising purposes" or for the "purposes of trade" without their prior written consent. The requirement for "written consent" is strict; verbal permission is generally not a sufficient defense. It is also important to note that, unlike in some other states, this statutory right in New York applies only to living persons. Consequently, the protection does not extend to the deceased, a critical distinction for the estates and heirs of famous personalities. The law thus focuses on protecting individuals from the unauthorized commercial exploitation of their identity during their lifetime.
2. New York Right to Name and Likeness: Identifying Infringement
An infringement of the right to name and likeness occurs when an individual's identity is used for commercial purposes without permission. Determining whether an unauthorized use constitutes an infringement often involves a careful analysis of the context and the primary purpose behind the use. The law seeks to strike a delicate balance: it aims to protect against commercial exploitation while not suppressing free expression, news reporting, or the public's right to information, which are protected by the First Amendment.
Key Infringement Criteria
The core criteria for determining infringement under New York law is whether the use of a person’s identity is for "advertising purposes" or for the "purposes of trade." A use for advertising is straightforward—for example, using a celebrity's photo in a social media ad for a product. "Purposes of trade" is broader and includes using a person's likeness on merchandise or in a way that commercially benefits from their identity without adding expressive or newsworthy content. This distinction is crucial, as uses in news reports, biographies, or works of art are often exempt. However, if a newsworthy item is used in a way that falsely implies endorsement, it can cross the line into commercial use. A use that is primarily informational, newsworthy, or satirical is generally protected and not considered an infringement.
Common examples of infringement include:
- Unauthorized Endorsements: A company using an actor's image in an advertising campaign to imply they endorse the brand, without a contract.
- Merchandise: Creating and selling t-shirts, posters, or other commercial products featuring a musician's face or name without a licensing agreement.
- Deceptive Digital Use: Using a person's voice or likeness in a "deepfake" video to promote a commercial service or product without their consent.
3. New York Right to Name and Likeness: Legal Remedies
Individuals whose right to name and likeness has been infringed upon in New York have specific legal remedies available under the Civil Rights Law. These remedies are designed to stop the unauthorized use and compensate the individual for damages suffered. It is critical for a person to act promptly to protect their rights, as a statute of limitations applies to these claims. Documenting the infringement with screenshots, copies of advertisements, and sales data is a crucial first step.
Actions and Damages
When an infringement occurs, the affected individual may file a lawsuit under Section 51 of the New York Civil Rights Law. The statute provides for a private right of action, which allows a person to seek both injunctive relief and monetary damages. This private right of action empowers the individual to take direct legal action to enforce their rights and control their public persona. The goal of these remedies is not only to compensate the victim for financial and reputational harm but also to deter the infringing party and others from future unauthorized uses.
The available legal remedies include:
| Remedy | Description |
|---|---|
| Injunction | A court order that forces the infringing party to immediately stop the unauthorized use of the person's name, portrait, picture, or voice across all platforms. |
| Actual Damages | Monetary compensation for the direct financial harm caused. This can be calculated based on the fair market value of a license the infringer should have paid or the profits the infringer made from the unauthorized use. |
| Exemplary Damages | Also known as punitive damages, these may be awarded if the defendant knowingly and willfully violated the statute. This requires showing the defendant acted with conscious disregard for the individual's rights. |
4. New York Right to Name and Likeness: Practical Considerations
While New York law provides a strong basis for protecting the right to name and likeness, navigating these cases requires a thorough understanding of a complex legal framework. The law is constantly being interpreted to address new technologies and media forms, from social media influencer marketing to AI-generated content. The constant tension between an individual's property rights and constitutional protections for freedom of speech means that the outcome of a case is often not obvious. Seeking experienced legal counsel is therefore the best course of action to properly assess a potential claim and pursue the appropriate remedies effectively.
The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading or relying on the contents of this article does not create an attorney-client relationship with our firm. For advice regarding your specific situation, please consult a qualified attorney licensed in your jurisdiction.
