In our first episode of Purple Reign, we saw that even though Prince was known as a “control freak” when it came to many things, he may have let a few things slip, such as the non-existence of a valid will.
Notwithstanding that incredibly inconvenient post-mortem faux paux, Prince was in fact obsessively compulsive when it came to controlling his intellectual property. He wanted to be in control. First, there was the “artist formally known as Prince” symbol he adopted in the late 1990’s in order to get order to leverage a split with then-record label Warner Bros. He was also a DMCA mad man known for sending frequent “take down notices” for everything from YouTube videos to fan made merchandise featuring his trademarks and rights of publicity.
Surreptitiously as it may be, Prince (or more to the point, his estate) may find that he has even more control over his intellectual property in death than he ever did in life. A new law in Minnesota called the PRINCE act plans to do just that. Less than one month after Prince’s death, Minnesota Rep. Joe Hoppe, introduced the Personal Rights in Names Can Endure (“PRINCE”) Act. The new act recognizes that “an individual has a property right in the use of that individual’s name, voice, signature, photograph, and likeness in any medium and in any manner.”
Unlike copyrights and trademarks, the right of publicity is not created by federal law but by the laws of each individual state, so the degree of protection varies significantly from state to state. Minnesota is currently one of just over 20 states in the U.S. that does not provide any protections for a person’s rights of publicity, either before or after death. The Prince Act would remedy that absence in Minnesota.
Many states, particularly those states where entertainment is a major source of tax revenue such as Tennessee, New York, California and Florida, have laws protecting a person’s rights in their name, likeness and sometimes other features of their persona, such as voice and signature. Length of protection is one of the variants. Indiana, for example, has a law that protects for 100 years after the person’s death and “reaches back” 50 years prior. There have been some challenges to the constitutionality of some of these laws, so many believe that a Federal law is needed to address the widely varying laws.
Minnesota’s PRINCE act would allow Prince’s estate to control the aforementioned post-mortem rights of publicity, or all things Prince, for the next 50 years. It’s important to note that although Prince’s death was the impetus for the law, according to its sponsor, it actually protects the rights of all citizens to their rights of publicity, not just Prince. This is one very important point that the faulty logic of critics of the act, such as The Volokh Conspiracy and ostensible IP expert David Post, do not factor into their criticism: the act is fundamentally fair because it protects ALL citizens of Minnesota, not just Prince’s estate. It is similar in structure to most rights of publicity laws, in that the Minnesota law essentially states that “[a]n individual has a property right in the use of that individual’s name, voice, signature, photograph, etc.” (emphasis added). Post complains that the law is “[j]ust what we need – more property rights that will clog up commerce, stifle free expression, [and] make lawyers happy forever.” Perhaps Post needs to be reminded that property rights, particularly copyright, is, as the Supreme Court described it, “the engine of free expression” and a driving force in the creation of commerce. See this LOR treatise for more. The Prince law, and rights of publicity laws like it in other states, will protect commercial exploitation of such rights and make sure that the estate the only entity that can benefit from that exploitation. There is nothing about the Prince Act that will “stifle” either free expression or commerce, in fact, the opposite is true.
But I digress. The Prince Act could pass as early as August if anti-IP zealots such as the aforementioned don’t have their way.
Of course, when considering any form of intellectual property as an engine of free expression, there are several limitations and exceptions that must be consider in relation to the right of publicity, most importantly those involving First Amendment and/or “Fair Use” protection in certain circumstances. The interest of the public in free speech must be weighed against society’s need to encourage the creation of useful arts. It also allows for fair use limited to news, public affairs, and sports broadcasts. To this end, the PRINCE Act has exceptions, just like other counterparts, for the use of rights of publicity for fair use limited to news, public affairs, and sports broadcasts. One example of a “newsworthy” use of an image would be using Prince’s image in connection with stories related to his death, such as this one. Use of a photograph of Prince in connection to a news article about his death would be a permissible fair use, the same image imprinted on a T-shirt to be sold for profit would be commercial and would require a license from the estate.
LOR will be watching closely to see how the bill continues to develop and will keep you posted with any updates. Please feel free to contact us if you have questions about these issues.
Read Part 1 of the Prince Reign series here.
Thanks to Morgan Wisted for her writing and assistance with this Prince series. Morgan is a summer intern at Shrum & Associates and has her own blog at www.silkenraven.com.