• Extending Those 15 minutes: NY Considers Law on Postmortem Rights
  • March 19, 2010
  • Law Firm: Manatt, Phelps & Phillips, LLP - Los Angeles Office
  • The New York State Legislature is considering a law that would extend publicity rights to celebrities after their death.

    S06790 would also make the rights retroactive 70 years prior to the effective date of its enactment and would allow celebrities to transfer their right of publicity by will or by prior contract, including the use of a residual provision in a testamentary instrument.

    The bill would reverse Shaw Family Archives v. CMG Worldwide, a 2007 case that held that Marilyn Monroe’s estate and its agent couldn’t enforce postmortem rights in New York. In that case, the estate filed suit against photographer Sam Shaw (who took the iconic image of Marilyn Monroe holding down her skirt while standing on a steam grate) after the photo was used on a T-shirt sold at Target and other images were sold on a Web site. The estate argued that it was the successor-in-interest to Monroe’s postmortem right of publicity devised through the residual clause of her will and therefore, the use of her picture, image, or likeness without its permission was a violation of its rights.

    But a U.S. District Court judge ruled that because neither California, Indiana, nor New York recognized postmortem publicity rights in 1962 when Monroe died, the estate could not have inherited them. (Monroe’s will was filed in New York, but she died in California, which has since enacted postmortem publicity rights, albeit not retroactively; Indiana - where the suit was originally filed - established a postmortem right of publicity in 1994 that was also prospective in nature.)

    S06790 was introduced in early February and has been referred to committee.

    Why it matters: With the passage of the legislation, New York would join a growing number of states that recognize the postmortem right of publicity. The retroactive component could prove to be a boon to celebrity estates.