New York Enacts Law with Significant Estate Planning Implications for Entertainers and Celebrities

On November 30, 2020, New York Governor Andrew Cuomo signed S5959, which significantly restricts the use of likenesses of deceased personalities and “digital replicas” of deceased entertainers, into law.[1]  The law has the potential to create valuable new assets that can significantly impact estate planning for covered individuals.  

The law, which takes effect on May 29, 2021, prohibits any use of the likeness, photograph, signature, voice, or name of a “deceased personality” without the prior consent of the individual’s successor in interest.[2]  The law defines a “deceased personality” as any individual residing in New York at the time of his or her death whose likeness, photograph, signature, voice, or name has commercial value at the time of his or her death.[3]  This definition would likely encompass notable individuals including athletes, actors, musicians, politicians, government officials, news anchors, television personalities, high profile businesspeople and corporate executives. 

The law also prohibits the use of a “digital replica” of a “deceased performer” in a scripted audiovisual work as a fictional character or in the live performance of a musical work unless the work or performance is authorized by such individual’s successor in interest.[4]  Unlike the restrictions on the use of deceased personalities’ likenesses, which only applies to deceased personalities residing in New York at the time of their deaths, this provision applies to any acts in the state of New York regardless of where the deceased performer resided at the time of his or her death.[5]  The law defines “deceased performer” as an individual professionally engaged in “acting, singing, dancing, or playing a musical instrument.”[6]  However, it is possible that, depending on how liberally New York courts interpret the term “acting” that this definition could apply to individuals involved in performances such as hosting talk or game shows, documentaries, or reality television shows. 

The law defines “digital replica” as a new computer generated performance that a reasonable observer would believe to be a performance by the individual portrayed.[7]  The law makes exceptions for parody, satire, commentary, criticism, works of political or newsworthy value, or works such as documentaries or biographical works or representations of deceased performers as themselves.[8]  This definition could potentially apply to likenesses created for use in computer animated films, television shows, and commercials as well as video games and augmented reality (AR) and virtual reality (VR) platforms. 

In order to exercise any rights under the statute, the deceased individual’s successor in interest must register such rights with the New York Department of State before the individual’s likeness or digital replica is used in violation of the statute.[9]  Therefore, the legal heirs of any covered individuals would be well advised to register such rights with the New York Department of State immediately after the law takes effect on May 29, 2021.  Moreover, living individuals of all ages who could potentially be covered individuals under the statute should ensure as part of their estate planning that their rights are registered with the New York Department of State.  

In summary, the rights created by the new law effectively create additional assets that become part of covered individuals’ estates and could have significant value for years after their deaths.  Since the law expressly authorizes a covered individual to transfer his or her rights by testamentary instruments, trusts, or contract, covered individuals have significant latitude in determining how to allocate such assets as part of their estate planning.[10]