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October 2021
Welcome to readers of Making the Connection
In this issue, you will find: 
  • In Focus : New York Extends Right of Publicity Beyond Death
  • Question of the Month, answering a reader's inquiry about hiring applicants subject to non-competes
  • Case on Point, discussing the definition of employee in the copyright context
  • At the Podium, listing my speaking engagements and public appearances
  • Client Corner, spotlighting client events and announcements
In Focus
New York Extends Right of Publicity Beyond Death
New York's Civil Rights statute has protected people from the unauthorized use of their name or likeliness for advertising or related purposes.  State law, however, did not prohibit the use of the names or likeness of deceased persons for those purposes.
To allow the descendants of deceased celebrities to profit from the commercial exploitation of such celebrities' names or likeness,  the statute was recently amended to provide such protection.  The new provision states as follows: "Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision four of this section, shall be liable for any damages sustained by the person or persons injured as a result thereof."  A "deceased personality" refers to a deceased New York resident "whose name, voice, signature, photograph, or likeness has commercial value". Consent must be obtained from the transferee or heir of the deceased person.
Question of the Month
This month's question comes from Gia Ricottone of GMR Media Relations.
Q: What should an employer do it is interested in hiring someone who may be subject to a non-compete or other restrictive covenant?

A: An employer should require applicants for employment to disclose whether they are subject to a non-compete or other restrictive covenant. The employer should then consider whether employing the applicant would violate the provisions.  If so, the employer could be liable for tortiously interfering with the agreement between the applicant and the former employer.  To avoid such liability, the employer might consider delaying the hire, negotiating with the former employer for a release, or assigning the candidate to a position that would not violate the provisions. If the non-compete is so broad as to violate state law, an employer might consider suing to enjoin its enforcement.

Case On Point
In this month's case, the court defines who is an "employee" for Copyright Act purposes.
Horror Inc. v. Miller
(2d Cir. Ct. of App. 2021)

Under the Copyright Act, the author owns the copyright in a copyrightable work unless it is a "work for hire" or otherwise assigned.  There are two categories of work for hire:
  • a specially commissioned work where the parties expressly agree it is a work for hire; and
  • a work created by an employee within the scope of employment.
At issue in Horror Inc. v. Miller was whether the author of a screenplay was such an employee. Plaintiff, a production company, pointed to the fact that defendant Miller was a member of the Writers Guild of America and a signatory to the collective bargaining agreement between writers and "signatory employers".
The Court, however, noted that employees under the National Labor Relations Act are not necessarily employees under the Copyright Act, as the presumption under the Copyright Act is that the author retains the copyright, and another party claiming ownership has the burden of proof on the issue.  In determining that Miller was an independent contractor rather than an employee under the Copyright Act, the Court applied the following factors, derived from the common law of agency: 
(1) the hiring party’s right to control the manner and means by which the work is accomplished; (2) the skill required to create the work; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party’s discretion over when and how long to work; (8) the method of payment; (9) the hired party’s role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; [and] (13) the tax treatment of the hired party.

At the Podium
This is a listing of speaking engagements, workshops, events and other public appearances. At the Podium events are listed on the calendar page of my website. A listing of available presentations and workshops is also posted.   To book me as a speaker or facilitator at your next company, client or association function, contact me at    
  • My presentation on Strategic Alliances to the Moxxie Network Business Development Club has been rescheduled for October 14, 2021.  Click here for information

Client Corner
Client Corner features client announcements and events of potential interest to readers.  Some Client Corner events are also listed on the calendar page of my website.    

  • Moxxie Mentoring Foundation will have its Emerald Summit fundraising luncheon on October 28, 2021 from noon to 3:00 p.m. at the Heritage Club.  Visit for tickets and sponsorships.

80 Orville Drive, Suite 100 | Bohemia, NY 11716
© 2021, Lisa Renee Pomerantz. All rights reserved.

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