Dead Celebrities Bill Dormant; May Revive

Once again, we’re sending this to all members because of the nationwide importance of this New York legislation.

The New York State Assembly and Senate adjourned their regular sessions yesterday without taking action on the “Dead Celebrities” bill. This is good news. This legislation would give heirs of anyone who died after January 1, 1938, the right to sue for unauthorized use in “advertising” or “for the purpose of trade” the “name, portrait, voice, signature or picture” of their deceased forebears. It clearly poses a significant threat to First Amendment rights.

We had a strong response from members to our alert — legislators reported that “many writers” were calling on the bill. Thanks to all of you who acted so speedily on our request.

Some of you were told by legislative staff that the bill has been “killed.” It hasn’t. It appears likely that it will be reconsidered in a special session of the legislature expected this summer. It’s not too late — nor too early for the anticipated special session — to register your opposition to the bill: please fax your letters to the legislators listed below. (If you’d like, you may borrow liberally from our letter, which follows.)

Senate Majority Leader Joseph Bruno (fax: 518-455-2448) Senator Martin Golden (R-Brooklyn, Sponsor of Senate bill) (fax: 518-426-6910) Assembly Speaker Sheldon Silver (fax: 518-455-5459) Assemblywoman Helene Weinstein (D-Brooklyn,Sponsor of Assembly bill) (fax 518-455-5752)

Feel free to forward and post this message. The Authors Guild (www.authorsguild.org), is the nation’s oldest and largest society of published authors.

AUTHORS GUILD LETTER (similar letters went to the other legislators listed above)

June 20, 2007

Senate Majority Leader Joseph Bruno Room 909 Legislative Office Building Albany, NY 12247

Dear Senate Majority Leader Joseph Bruno:

We have been monitoring the progression of Bill S.6005 and now feel compelled to express our deep concern over the danger this Bill poses to our rights of free speech. As you are aware, this Bill would modify Sections 50 and 51 of our Civil Rights Law in order to criminalize the unauthorized use in “advertising” and “trade” of “the name, portrait, voice, signature or picture” of anyone who died after January 1, 1938.

The flaws in this rushed piece of legislation are many. Here are a few:

1. It addresses no pressing concerns. Proponents of the Bill claim they need it to shelter the legacies of celebrities from “abuses,” but the only abuse we hear of is a 20-year-old one involving Johnny Carson. (It’s not only old, it’s irrelevant — the bill would have done nothing for Mr. Carson, were he a New York resident. The suddenly famous “Here’s Johnny” portable toilet was marketed while he was still alive, and he succeeded in blocking its sale.) What’s the rush, and where’s the urgent need for this law?
2. It fails to define the critical terms “advertising” and “trade.” There can be no assurance that courts will choose to define these terms with respect to a new property right in the same way those terms have been defined regarding New York’s privacy right. The interpretation of this bill — which directly implicates vital free speech concerns — needs to avoid all ambiguity and provide a clear, broad safe harbor for literary and artistic use.
3. It fails to provide the minimal safeguards of California’s publicity law. California’s law has a sunset provision — publicity rights lapse 70 years after the celebrity’s death. It also requires official registration, with a showing that the rights had “commercial value” at the time of the person’s death, prior to enforcement of publicity rights. This bill, by contrast, would provide a bottomless well of potential plaintiffs for authors and publishers to contend with.

Our historical record cannot be under the control of the heirs of the deceased, no matter how sympathetic some of these heirs may be. The chilling effect of this legislation would be immediate and dramatic. Without radical amendment to protect the free speech concerns of historians, biographers, novelists, journalists and playwrights, and the public, it has no place in the laws of our nation’s publishing capital.

On behalf of the more than 8,500 published authors of our guild — more than 2,500 of whom reside in New York, we urge that this legislation be dropped.

Sincerely,

Paul Aiken Executive Director