June 15, 2015
APA Memorandum in Opposition to
Senate Bill No. 5650 / Assembly Bill No. 7904
The American Photographic Artists (APA) is strongly opposed to Senate Bill 5650 and its companion legislation, Assembly Bill 7904, which would grant a seventy-year retroactive and descendible right of publicity to all deceased residents of New York State, regardless of their celebrity status. If enacted, such legislation will cause serious economic harm to our New York State members who photograph people as part of their jobs, whether doing so as employees of news organizations or as freelancers. This “Right of Publicity” will unconstitutionally deprive photographers and others of the right to exercise property and copyright interests in their still, filmed and recorded images.
American Photographic Artists (APA) is a 501(c)(6) not-for-profit association for professional photographers. The American Photographic Artists is a leading national organization run by and for professional photographers. With a culture that promotes a spirit of mutual cooperation, sharing and support, APA offers outstanding benefits, educational programs and essential business resources to help its members achieve their professional and artistic goals. Headquartered in Santa Fe, NM with chapters in Atlanta, Los Angeles, Chicago, New York, San Diego, San Francisco, Charlotte, the Northwest and Washington, DC, APA strives to improve the environment for photographic artists and clear the pathways to success in the industry. Recognized for its broad industry reach, APA continues to expand benefits for its members and works to champion the rights of photographers and image-makers worldwide.
Recognized as the heart of the media industry, New York State has always been at the forefront in upholding the First Amendment and its concomitant rights. Substantially expanding the breadth of a statutory right of publicity creates a burdensome and retroactive statute that will have a crippling and chilling effect on expressive speech. Such legislation will require representatives and owners of valid federal copyright registrations in images depicting any person (not just celebrities) domiciled in New York State who died after 1945, to obtain permission from heirs for any use that is considered as a vaguely defined “commercial purpose.” No descendible right of publicity has previously existed and, these deceased persons have never specifically transferred this right. Instead of heirs inheriting these rights, it is more likely that a corporation, with no interest in New York State, and whose only interest is in exploiting publicity rights and restricting photographers and their licensing representatives from contractually dealing with preexisting images, will benefit from this newly created ex post facto right. Photographers and licensing representatives will suddenly lose a right they have had for more than 100 years, with this unconstitutional taking.
The language of this bill is overbroad, ambiguous and vague. It invites unnecessary and burdensome litigation. Application of the defined term “commercial purpose” would dispense with over 100 years of judicial interpretation of what constitutes “advertising and trade purposes” under the 1903 enacted NY Civil Rights Law § 50 & 51. Most importantly, the language in Section 34 Exemptions on Use Restrictions fails to provide a clear exemption for expressive works. Moreover, it conditions the exemption for expressive works where the work “does not contain an image or likeness that is primarily commercial, not transformative and is not otherwise protected by the First Amendment to the United States Constitution or New York state constitution.” The bill fails to define what would make an image or an individual’s likeness “primarily commercial” or “transformative.” It unconstitutionally restricts visual images and other expressive works and will have a chilling effect on image creators and licensors and those that rely on access to visual imagery in creating new works.
The United States Supreme Court has ruled many times that any law that results in self-censorship is worse than a statute that specially bans or regulates protected speech. If a law “has such a tendency to inhibit constitutionally protected expression that it cannot stand under the Constitution.” See Smith v. California, USC 361 U.S. 147 (1959).
The proposed legislation will most certainly increase the costs and burdens of licensing images, requiring increased fees and burdensome approvals for previously permitted uses. Photographers and their representatives will likely bear the undue burden of researching whether a deceased individual’s domiciliary was New York State, and if so, locating the owner of their publicity right and securing approval, which may never be possible. These individuals and companies can ill afford these costs and the end result will be fewer images licensed, and fewer jobs in New York State.
The consequences of departing from clear law is too great to justify merely satisfying the desire of a few celebrities’ agents who want to unreasonably exploit photographers and the licensing of their images on which they rely for their livelihoods. The constitutional concerns, undue burdens and litigation risks such a law would impose on our members are far too high to justify any benefits it may provide. The chilling effect would be immediate and overwhelming.
For the above stated reasons, APA strongly opposes S.5650/A.7904 and urges that this legislation be defeated.