State law, either by statute or common law, generally recognizes a right of privacy that prohibits the unauthorized commercial use of an individual’s name, image, or likeness (“NIL”). This right of privacy, however, is often limited or unavailable with respect to public figures, including well-known personalities, celebrities, and political figures, particularly where the use implicates matters of public interest.
For such individuals, protection typically arises under the distinct but related doctrine known as the right of publicity, which safeguards against the unauthorized commercial exploitation of a person’s name, image, or likeness. Unlike traditional privacy rights, the right of publicity is not defeated by an individual’s public status.
In recent years, many states have expanded the right of publicity to extend beyond death, providing post-mortem protection against unauthorized commercial uses of a deceased individual’s NIL for a statutorily defined period, which varies by jurisdiction.
New York has long been a pioneer in this area. In 1903, it became the first state to enact a right of publicity statute with the adoption of Sections 50 and 51 of the New York Civil Rights Law. These provisions prohibit the use of the name, portrait, or picture for “advertising purposes” or “purposes of trade” without that individual’s prior written consent.
In 2020, New York extended right of publicity protections beyond death, establishing statutory rights that require consent for the commercial use of the name, image, or likeness of certain deceased individuals for a period of 40 years after death.
New York has now enacted new legislation significantly expanding the scope of its right of publicity laws, further strengthening protections over the commercial use of an individual’s identity after death.
On December 11, 2025, Governor Hochul signed the Expansion of Right of Publicity Statute (S.8391 / A.8882). Under the new law, consent must be obtained from an individual’s heirs or duly authorized executors before using that individual’s name, image, or likeness for commercial purposes after death. The revised law also requires prior consent from a deceased performer’s successors-in-interest before their digital replica can be used in an expressive audiovisual work or sound recording. The legislation reflects growing concerns surrounding post-mortem exploitation, digital media, and emerging technologies capable of recreating or simulating a person’s likeness.
Practical Takeaways
The expanded statute has important implications for businesses, advertisers, content creators, and rights holders:
- Increased Scrutiny for Commercial Use: Prior to using the name, image, likeness, or digital replica of a deceased New York personality or performer for commercial or trade purposes, proper consent must be obtained from legal right holders.
- Estate Planning: For individuals with a valuable public profile, proper estate planning is necessary to ensure the post-mortem publicity rights and control over their digital likeness are clearly managed and bequeathed to a decedent’s designated successors.
- Legal Exposure: The increased potential for legal liability, makes it essential to understand the scope and exceptions of the law including protections for works of news, public interest, political value, and other First Amendment protected expressions
New York’s continued expansion of publicity rights underscores the increasing legal recognition of personal identity as a protectable asset, both during life and after death. Businesses operating in New York or targeting New York markets should take note of these developments and seek legal guidance when using names, images, or likenesses tied to real individuals.