New York State Post-Mortem Publicity Bill On Hold

New York State is becoming a hotbed for photography-based controversies. Here’s an interesting article by Daryl Lang from pdnonline regarding a proposed post-mortem publicity photo bill.

With the legislation session on summer recess in New York, a bill that would grant more publicity rights to the heirs of dead celebrities is off the table for now.

The bill – introduced as Senate bill 6005 and Assembly bill 8836 – was opposed by the American Society of Media Photographers (ASMP) and others, especially the owners of photo archives of Marilyn Monroe.

The bill would make it illegal to use a dead person's likeness for a commercial purpose without permission of the person's heirs. Of key concern was language in the bill that would retroactively transfer publicity rights to the successors of all people who have died since Jan. 1, 1938. Other states have similar laws, but none with language as broad as the one proposed in New York, according to opponents of the bill.

The bill was introduced in late May and never made it out of committee, but sponsors are considering whether to revise it and reintroduce it in the fall.

"We are reassessing the bill and addressing the concerns raised by those in the industry," says Walter Pacholczak, director of operations for Sen. Marty Golden, one of the bill's sponsors.

Pacholczak says the senator's office heard from a range of people who would be affected by the bill. "We feel a lot of those concerns are valid," he said. The other sponsor of the bill is Assemblywoman Helene Weinstein.

Among the bill's opponents are members of the Shaw family, who control the work of Monroe photographer Sam Shaw. A lawyer for the family says they will continue to fight the bill to prevent it from becoming law.

"We intend to oppose it and so do a lot of other photographers and people in the media," says Christopher Serbagi, a lawyer who represents the Shaw Family Archives and its agent, Bradford Licensing Associates.

The Shaw Family Archives recently prevailed in a lawsuit in New York State brought by Monroe's estate, MMLLC, and its licensing agency CMG Worldwide. The Monroe estate also lost a similar case in California against the Milton H. Greene Archives. Both cases concerned royalties from commercial uses of Monroe photographs.

The ASMP wrote a memorandum of opposition to the bill, saying the bill's broad language would violate the First Amendment and severely disrupt existing business relationships. Among its arguments, the ASMP wrote that, "The retroactive language would create havoc in the marketplace, chaos in the courts, and spawn litigation for decades."