Intellectual Property Law

How Does New York's Right of Publicity Bill Compare with Washington's Statute?

By Michael Atkins

So how does New York’s new right of publicity bill (S-6790) compare with the 2008 amendment to Washington’s right of publicity statute (RCW 63.60)?

They’re cut from the same — expansive — cloth, but there are some notable differences.

Here’s a cheat sheet to the key terms: 

Definition of “Deceased Personality”

• New York Bill: “[A]ny natural person who: (1) died a domiciliary of the state of New York on or after, or within seventy years prior to, the effective date of this section; and (2) whose persona was of commercial value at the time of his or her death, whether or not the individual used his or her persona for advertising purposes or for the purposes of trade during his or her lifetime.”
• Washington Statute: “[A]ny individual, regardless of the personalty’s place of domicile, residence, or citizenship at the time of death or otherwise, whose name, voice, signature, photograph, or likeness had commercial value at the time of his death, whether or not during the lifetime of that individual he or she used his or her name, voice, signature, photograph, or likeness on or in products, merchandise or goods, or for purposes of advertising or selling, or soliciting the purchase or sale of, products, merchandise, goods, or services.”

Descendibility of Personality Right

• New York Bill: “A deceased personality’s persona is personal property, freely transferable or descendible, in whole or in part, by contract or by means of any trust or testamentary instrument, whether such contract, trust or testamentary instrument is entered into or executed before or after the effective date of this section, by the deceased personality or by any subsequent owner of the deceased personality’s persona as recognized by this section.”
• Washington Statute: “This right shall be freely transferable, assignable, and licensable, in whole or in part, by any otherwise permissible form of intervivos or testamentary transfer, including without limitation a will or other testamentary instrument, trust, contract, community property agreement, or cotenancy with survivorship provisions or payable-on-death provisions, whether the will or other testamentary instrument, trust, contract, community property agreement, or cotenancy document is entered into or executed before, on, or after June 11, 1998, by the deceased individual or personality or by any subsequent owner of the deceased individual’s or personality’s rights as recognized by this chapter….”

Ownership of Rights by Heirs

• New York Bill: “If no transfer of some or all of the rights recognized under this section has occurred in accordance with subdivision eleven or twelve of this section, then such rights shall be deemed to have passed in accordance with section 4-1.1 of the estates, powers and trusts law; provided, however, that if there are no surviving natural persons to whom said rights pass by intestate succession, then said rights shall terminate.” 
• Washington Statute: “Except where such rights were transferred or assigned before such deceased personality’s death by means of any contract or trust instrument, the right shall be owned by the person entitled to such rights under the deceased individual’s or personality’s last will and testament or, if none, then by the beneficiaries or heirs under the laws of intestate succession applicable to interests in intangible personal property….”

Retroactive Application

• New York Bill: “The rights recognized under this section are expressly made retroactive and shall be deemed to have existed at the time of death of any deceased personality who died within seventy years prior to the effective date of this section….”
• Washington Statute: “The rights recognized under this chapter shall be deemed to have existed before June 11, 1998, and at the time of death of any deceased individual or personality or subsequent successor of their rights for the purpose of determining the person or persons entitled to these property rights as provided in this section. … This act applies to all causes of action commenced on or after June 11, 1998, regardless of when the cause of action arose. To this extent, this act applies retroactively, but in all other respects it applies prospectively.”

Full post as published by Seattle Trademark Lawyer on February 10, 2010 (boomark / email).