New York’s current law on misappropriation, New York Civil Rights Law §§ 50 and 51 (“50/51”), offers broad protection to writers, publishers, filmmakers and producers against right of publicity claims by celebrities. But now, in a sneak attack on those First Amendment rights, a lobby representing the estates of dead celebrities has convinced the New York legislature to fast track (it could pass in days!) an amendment to 50/51 that would create a descendible right of publicity in New York for the first time.

It’s clear that the celebrity lobby has been motivated to put their efforts into high gear at least in part by the May 2007 case of Shaw Family v. Marilyn Monroe in which the Southern District held that the company that thought it had inherited the rights to license Marilyn Monroe’s image through her will actually did not have those rights because 50/51 at the time of her death (and now) only covered living persons.

Under the proposed amendment, the right of publicity would be extended to dead people going back 70 years and with no cut off point in the future. In addition, violators would be guilty of a misdemeanor.

It may not be so bad to extend 50/51 to the dead, IF there could be some assurance that the law would apply, as intended, only to commercial uses of people’s images. Unfortunately, the case law in New York reveals that litigants constantly challenge the law’s definition of a “commercial use,” trying again and again (to no avail) to extend the law to editorial, newsworthy, and other expressive uses.

There is no question that opening 50/51 to the dead will bring more litigations against the media for their legitimate, non-commercial uses of the likenesses of both celebrities and private individuals.

A possible compromise has been proposed by some media organizations that would specifically exempt “expressive works” from the law. This seems a redundant solution since so many cases have already correctly interpreted the law to apply only to commercial works, such as advertisements and merchandise. Still, given the fact that plaintiffs continue, on a regular basis, to sue media companies for their editorial uses under the law, perhaps an exemption clarifying the real intent of the law could be in order, particularly if the zombie lobby is able to get the law expanded to cover the dead.