United States - New York - Deepfake Regulation (S5959)

Overview

New York Senate Bill S5959D, enacted as Chapter 443 of the Laws of 2020, significantly amended the New York Civil Rights Law and the Arts and Cultural Affairs Law. The legislation, officially titled "An act to amend the civil rights law and the arts and cultural affairs law, in relation to the right of privacy and the right of publicity; and to amend the civil practice law and rules, in relation to the timeliness of commencement of an action for violation of the right of publicity," was signed into law by Governor Andrew Cuomo on December 1, 2020. It became effective on May 31, 2021. The bill primarily addresses two distinct, yet related, areas: establishing a descendible right of publicity for deceased performers and personalities, and creating a private right of action against the unlawful dissemination or publication of sexually explicit deepfakes, which are referred to as 'sexually explicit depictions' resulting from digitization. While the user's requested title for this entry includes 'Deepfakes in Elections,' it is important to clarify that S5959D's provisions regarding deepfakes are specifically targeted at sexually explicit content and do not directly regulate deepfakes in the context of political campaigns or elections. Separate legislation, such as amendments to the Election Law adopted in April 2024, addresses AI-generated political communications.

Definitions

The law introduces and amends several key definitions within the Civil Rights Law and Arts and Cultural Affairs Law to support its provisions:

• Performer: Defined as a deceased natural person domiciled in New York at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical instrument. (New York State Assembly)
• Personality: Defined as a natural person domiciled in New York at the time of death whose name, voice, signature, photograph, or likeness has commercial value at the time of their death, whether or not they used it for commercial purposes during their lifetime. (New York State Assembly)
• Digital Replica: Refers to a computer-generated or electronically created likeness or voice of a deceased performer or personality. (New York State Assembly)
• Materially Deceptive: Although not explicitly defined in S5959D, this concept is central to the deepfake provisions, implying content that falsely portrays an individual in a sexually explicit manner through digital alteration.
• Depicted Individual: For the purposes of the private right of action for sexually explicit depictions, this term means an individual who appears, as a result of digitization, to be giving a performance they did not actually perform or to be performing in a performance that was actually performed by the depicted individual but was subsequently altered to be in violation of the section. This definition directly addresses the creation of deepfakes.
• Sexually Explicit Depiction: Refers to material that is obscene, child pornography, or sexually explicit, as defined in New York Penal Law. (New York State Assembly)

Governance and Institutional Framework

The implementation and enforcement of this law primarily fall under the purview of the New York State courts, particularly for private rights of action. The law establishes mechanisms for individuals to seek redress through civil litigation. Additionally, the New York Department of State is responsible for maintaining a public registry for claims of descendible rights of publicity. This registry allows successors in interest to a deceased individual's right of publicity to publicly post their interests, providing notice to those who might seek to use an individual's persona. The Secretary of State is tasked with posting registered documents and the entire registry on a public internet website.

Key Focus Areas

• Descendible Right of Publicity: The law establishes that every individual's right of publicity shall continue to exist for forty years after their death, and does not expire upon the individual's death. This right is transferable and descendible, meaning it can be passed on to heirs or assigned. (New York State Assembly) This is crucial for protecting the commercial value of a deceased individual's name, voice, signature, photograph, or likeness.
• Private Right of Action for Sexually Explicit Deepfakes: A significant component of the bill is the creation of a private right of action for unlawful dissemination or publication of a sexually explicit depiction of an individual. A depicted individual has a cause of action against any person who discloses, disseminates, or publishes such material, provided the person knows or reasonably should have known the depicted individual did not consent to its creation, disclosure, dissemination, or publication. This provision specifically targets non-consensual deepfake pornography.
• Exclusions and Limitations: The law includes exclusions consistent with constitutionally protected freedom of speech, aiming to balance individual rights with First Amendment protections. The provisions related to the right of privacy and publicity apply to acts or events that occur within New York State. Additionally, there are specific exemptions for certain expressive works, such as news, public affairs, sports broadcasts, and various artistic or literary works, provided the use is not a 'digital replica' for purposes of trade within an expressive work that is likely to deceive the public. (New York State Assembly)
• Registration of Publicity Rights: The bill mandates the creation of a public registry for deceased individuals' rights of publicity, maintained by the Department of State. This registry serves to provide public notice of claimed rights.

Implementation Framework

The law took effect on May 31, 2021, applying to individuals who died on or after that date for the descendible right of publicity. The private right of action for sexually explicit deepfakes also became effective on this date. The implementation relies on individuals bringing civil actions in New York State courts. For the right of publicity, successors in interest are encouraged to register their claims with the Department of State to provide public notice, although registration is not a prerequisite for bringing a claim regarding a deceased performer. The Department of State is responsible for establishing the form and procedures for this registration. (New York State Assembly)

Monitoring and Evaluation

Monitoring and evaluation of compliance will primarily occur through the judicial system as individuals exercise their private right of action. There are no explicit provisions for a state agency to proactively monitor compliance or conduct regular evaluations of the law's effectiveness. However, the public registry for rights of publicity could serve as a dataset for understanding the scope of claims made. The law does not outline specific reporting requirements for its impact, but judicial precedents and case outcomes will shape its interpretation and application over time.

Penalties, Liability, and Appeals

For violations of the descendible right of publicity, statutory remedies include compensatory damages of at least $2,000, any profits from the unauthorized use of the deceased individual's name or likeness, and the possibility of punitive damages. Injunctive relief, attorneys' fees, and court costs are also available. (New York State Assembly) For the unlawful dissemination or publication of a sexually explicit depiction, the depicted individual may seek injunctive relief to prohibit distribution, along with compensatory damages, punitive damages, attorneys' fees, and court costs. The law specifies that it is not a defense to an action under this section that the depicted individual in the material was not identifiable through their face, as long as they are identifiable through other physical characteristics. (New York State Assembly) The appeals process would follow standard civil procedure in New York State courts.

Relationship to Other Instruments

This law significantly amends the New York Civil Rights Law, specifically by adding new sections 50-f, 50-g, 50-h, 50-i, and 52-c, and renumbering section 50. (New York State Assembly) It also amends the Arts and Cultural Affairs Law. The legislation aims to align New York with other states that have statutory descendible rights of publicity, such as California and Tennessee. It explicitly states that nothing in its provisions related to the right of publicity shall be deemed to abrogate or otherwise limit any rights or remedies otherwise conferred by federal or state law. While S5959D addresses deepfakes generally (specifically sexually explicit ones), New York has also adopted separate legislation in mid-April 2024, as part of the Fiscal Year 2025 state budget, to amend the Election Law concerning AI-generated political communications. This election-specific amendment requires disclaimers for materially deceptive AI-altered political communications. This highlights a broader legislative effort in New York to address AI and synthetic media across different legal contexts.

International Alignment

While the law is a state-level initiative, the issues it addresses, particularly the regulation of deepfakes and the protection of personal likeness, are subjects of international discussion and legislative development. Many jurisdictions globally are grappling with the legal implications of AI-generated content, privacy, and defamation. New York's approach, particularly the private right of action for non-consensual sexually explicit deepfakes, aligns with a growing international trend to provide legal recourse against such abuses of technology. The establishment of a descendible right of publicity also puts New York in line with several other nations that recognize post-mortem personality rights, though the specifics of duration and scope vary.

Implementation Timeline

Compliance Checklist

Sources and References