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By ALM Staff | Law Journal Newsletters |

Right Of Publicity/Plaintiff's Death

A right-of-publicity claim filed under New York law by actor Jerry Orbach before his death in 2004 can proceed, the New York County Supreme Court decided. Orbach v. Hilton Hotels Corp., N.Y.L.J., Aug. 1, pg. 18. Orbach had agreed to narrate a documentary that he claimed he thought would be used only for the 100th anniversary of the Waldorf-Astoria hotel. Orbach's suit alleged “that [Hilton Hotels] has illegally used and displayed the video far beyond the terms of the original agreement thereby causing harm to him.” Hilton Hotels argued that Orbach's right-of-publicity claim under New York Civil Rights Law Sec. 51, the state's right-of-privacy statute, ended when he died. New York courts have held that Sec. 51 isn't a descendible right. But the trial court noted that the issue in the Orbach case was answered in Groucho Marx Productions Inc. v. Playboy Enterprises Inc., 1979 U.S. Dist. LEXIS 13900 (S.D.N.Y. 1979), which “held that if an individual files a Sec. 51 action and then dies, his legal representative may be substituted. Judge [Morris] Lasker [of the Manhattan federal district court] distinguished cases in which the action was brought after the death of the plaintiff as follows:

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