Drawing… or Creating a Character Inspired by Real People… NY Legal Protection of the Right of Publicity

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  • Where is this real person domiciled?
  • Was there an agreement?
  • If there was an agreement, did you agree on the applicable law?

How is the right of publicity applied in New York?

After explaining in very general terms what the right of publicity is, let’s see it is treated in New York. New York, in contrast with other jurisdictions, treat the right of publicity as an expression of the right of privacy. Under New York Civil Rights Law Section 50 “A person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor.”

How could a person successfully argue a violation of the right of publicity?

New York Law has been strictly applied when it comes to protecting the right to publicity. Not only because it understands it as an extension of the right to privacy recognized by the Civil Rights, but also because of its potential conflicts with the rights granted by the First Amendment. Accordingly, to argue a violation, a plaintiff must prove:

  1. That the use was made for commercial purposes.
  2. That the plaintiff gave no written consent.

Is there a common law right of publicity?

Since the express creation of a statutory right of publicity under New York Civil Rights Law, it has been clearly understood that no common law right of publicity exists. Accordingly, those looking for some kind of relief must base their claims on Section 50 and 51.

Who is protected under the right of publicity?

Under New York Law, only living persons have a protectable right of publicity. This is particular of New York because there are jurisdictions where the right of publicity is recognized beyond the life of the person portrayed. In this context, it is also important to understand that only the person allegedly harmed may assert a cause of action under the New York Civil Rights Law.

Is there a statute of limitation associated with the right of publicity cause of action?

A person allegedly harmed by another has a maximum of one year to bring a lawsuit. This term is counted from the date of first unauthorized use of the person’s publicity rights.

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Written by

Giselle Ayala is an attorney focused on immigration, business, marketing, and artist’s transactions.

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