New York Publicity Law and Estate Planning

Screen legend James Dean passed away 64 years ago, but a new CGI film called is about to feature Dean in a new starring role. To use Dean’s appearance in this way, the filmmakers needed to obtain the permission of Deans’ heirs because Dean passed away as a California resident. 


In the state of California, heirs are granted the right of publicity for a deceased loved one, which includes the ability to control the commercial use of that person’s name, image, or likeness. If Dean had passed away in the state of New York, the filmmakers would have had a much easier time because New York law does not recognize such a right among heirs.


Advancements in CGI technology are currently pushing the boundaries of existing publicity laws throughout the country. This means that actors and celebrities, as well as anyone who has ever appeared dealt with publicity rights, must consider these issues when writing an estate plan. This article reviews some of the various considerations that you should have when it comes to handling publicity rights.


How Publicity Rights Have Changed


The use of CGI and computer-generated graphics featuring the rights of deceased individuals has evolved substantially over the years. One of the earliest uses of CGI in this area was when actors passed away unexpectedly during a film. For example, in the early 1990s CGI was utilized to finish “The Crow” after actor Brandon Lee was killed accidentally on the set. Over the years, however, the usage of CGI has changed substantially. In 2016, CGI was used in “Rogue One: A Story Wars Story” to make it appear as if an actor who passed away in 1994 was still alive. 


As film studios continue to explore how publicity rights can be utilized, many troubling  implications arise about what the usage of publicity rights in such a way might one day mean. Fortunately, film studios so far have taken a degree of caution when utilizing CGI in this way even when the studio owns the associated publicity rights.


Uncertainty in this Area of Law


One of the difficulties in assessing how rights of publicity will unfold is that there is no federal law addressing this area. This means that each state must determine how publicity rights should be handled after a person’s death. 20 or so states protect the publicity rights of a deceased individual as a right that can be inherited by heirs. Some other states have common law post-mortem rights. 


Other states have rejected these rights. Some states are yet to consider the question of how these publicity rights should be handled. These rights in turn range from 0 to 100 years after a celebrity’s death. Other states have no time limits if these protections are continually used. Some states require a person to have value at the time of death, while other states protect the publicity rights of everyone.


Speak with a Knowledgeable Estate Planning Lawyer Today


There are many commonly overlooked aspects of estate planning, which includes the right of publicity. Because New York currently does not have any laws that recognize this right, families must speak with a knowledgeable estate planning attorney. 

Contact Ettinger Estate Planning today to schedule a free case evaluation.

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