The names and images of famous New Yorkers including Mickey Mantle, Judy Garland and Malcolm X would be protected from advertising and promotion without authority given by their estates under a measure pushed by Al Pacino and Yoko Ono.
New York law already protects the unauthorized use of celebrities' faces and names while they are alive, but there is no safeguard after they die despite a high concentration of entertainment, political and sports legends in and around New York City. The group said New York and Wisconsin are the last U.S. states to try to protect the famous dead from exploitation.
"I feel like one's likeness and image should be protected in some way and not abused or denigrated for the sake of profit," Pacino wrote to legislators after the estate of Lee Strasberg started talking to him.
If passed, the measure could result in a misdemeanor charge against a T-shirt maker or novelty manufacturer for unauthorized use of a celebrity's image, name, voice recordings, perhaps even their uniform number and signature. The protection could last for up to 70 years after the celebrity's death.
But the measure will have to walk a line between protecting the rights of estates and charities to cash in on dead celebrities and constitutional free-speech protections.
"You have to be very careful that in trying to stop the commercial exploitation of an image you do not stop the artistic exploitation of an image," said Assemblyman Richard Brodsky, a Westchester Democrat and lawyer.
The concern, he said, is the ambiguity of the proposed prohibition of using a dead celebrity "for the purposes of trade."
The proposal follows a May U.S. District Court decision in New York City in which Marilyn Monroe's estate lost it fight over unauthorized images of the actress on T-shirts.
The federal court ruled a 1994 law in Indiana, where the T-shirt retail company was based, did not protect Marilyn Monroe's identity after her death. The Marilyn Monroe LLC, which brought the suit, is headed by Anna Strasberg, the wife of Monroe's producer, Lee Strasberg, who received the bulk of the starlet's estate. He died in 1982.
Other testimonials in support of the bill announced Monday came from other famous New Yorkers including Ono, on behalf of herself and her deceased husband John Lennon; the estate of musician Jimi Hendrix; and relatives of baseball greats Babe Ruth, Jackie Robinson, Lou Gehrig and Mantle.
"This is not an abstract or theoretical problem," wrote Jeanne Moutoussamy-Ashe, widow of tennis great and activist Arthur Ashe, citing several court challenges by estates dismissed in court. "Let me emphatically state that this statute is meant to in no way affect the inherent and explicit rights of others to make unauthorized biographies, art pieces and myriad other works protected by the (U.S. constitution's) First Amendment.
"I do, however, support the New York state Legislature enacting this statute ensuring that a celebrity's unique character, persona and brand be protected from commercial exploitation," she wrote.