The following letter came from The Author’s Guild yesterday. My response to it follows.
There’s been a sudden and alarming push in the New York State Legislature to pass a bill that would create a posthumous “right of publicity” for anyone who died since Jan. 1, 1938. The bills would give heirs the right to control the use of the “name, portrait, voice, signature or picture” of anyone who died within the last 70 years for “advertising purposes or for purposes of trade.” The legislation provides for criminal penalties for unauthorized uses and gives heirs a right to sue for damages. The two versions of the bill that have been introduced do not provide a clear exemption for literary works. Certainly a bill that would open up biographers and historians — and many fiction writers — to a new kind of liability shouldn’t be undertaken without careful consideration. Our sources in Albany tell us that the Assembly bill (A. 8836) could be voted on at any time by the full Assembly and that it would most likely pass. The Senate bill (S. 6005) seems to be on a slower track, although it is still possible that it will pop up before the legislature recesses tomorrow or when it is reconvened by the Governor in July. We see no choice but to strongly and quickly oppose the legislation. The Authors Guild has already gone on record expressing its opposition. If you as Members want to register your opposition (and it would help the effort immensely we’re told), please fax your letters or call the legislators listed below immediately:

Senate Majority Leader Joseph Bruno (phone: 518-455-3191; fax: 518-455-2448)
Senator Martin Golden (R-Brooklyn, Sponsor of Senate bill) (phone: 518-455-2730; fax: 518-426-6910)
Assembly Speaker Sheldon Silver (phone: 518-455-3791; fax: 518-455-5459)
Assemblywoman Helene Weinstein (D-Brooklyn,Sponsor of Assembly bill) (phone: 518-455-5462; fax 518-455-5752)

I chose to write the letter that follows to Weinstein, a Brooklyn assemblywoman, with copies to my own assemblyman and to speaker Sheldon Silver.
Dear Assemblywoman Weinstein, I am writing as a New York City voter, as a writer and editor of non-fiction, and as a member of both The Author’s Guild and the American Society of Journalists and Authors, to vehemently protest your proposed bill #8836. Put simply, the bill stifles free speech, and in America, we don’t do that unless there’s a compelling reason. In this case, there is no compelling reason. The law would simply encourage frivolous lawsuits from families who often did nothing to earn a celebrity’s fame, but whose lawyers or agents are looking for an income stream. As an analogy, trademarks, the closest form of intellectual property, must continue to be used with a product or service to live on. But the California law, which you refer to, allows estates to continue to sue for 75 years after a celebrity’s death, even if the celebrity never chose to exploit or protect his or her name/likeness during his or her lifetime. The “Here’s Johnny” case happened during Johnny Carson’s lifetime (obviously), when he might have decided that he wanted to market products using his name. The law generally holds that your reputation dies with you, and there is no compelling societal reason why that should be changed by statute. You live and work and govern in a state where intellectual property is one of our most important products. Your bill would have a chilling effect on and be a stunning insult to the many non-fiction writers who live and work here. It would really only benefit lawyers. That’s why I am saddened but not surprised to learn that you hold a law degree yourself. I am copying my assemblyman and the speaker on this note in the hope that they will put their constituency ahead of lawyers and so-called celebrities. Sincerely, Michael Gross