Prince’s Death Sends Minnesota Legislature into OverdriveBy Jennifer E. Rothman
May 10, 2016
Yesterday, the Minnesota legislature introduced a rushed bill to protect a right of publicity in that state and particularly to extend post-mortem rights in that state. The bill came on the heels of the recent death on April 21st of the famous recording artist and composer Prince (aka Prince Rogers Nelson). Prince apparently died without a will making the ownership of his lucrative estate and intellectual property rights uncertain.
Making things even more uncertain though is the law of Minnesota itself. Minnesota has no statute that explicitly protects the right of publicity. However, the state does recognize a right to privacy, including a tort that protects against the misappropriation of one’s name and likeness. So while alive, Prince could have sued under Minnesota law if someone used his identity without permission.
Federal courts have suggested that Minnesota would also recognize a distinct right of publicity. But no court, whether federal or state, has considered whether Minnesota would carry such a right past death. This means that even if Minnesota law recognized claims by Prince against anyone who used his name or likeness without permission, it might not recognize such claims now that he is dead.
The right of publicity survives death in many states, but often only those who die domiciled (as a legal resident) in that state can bring such claims. One notable example involves the heirs to Marilyn Monroe’s right of publicity. Because Monroe was found to have died domiciled in the state of New York—which does not recognize a post-mortem right of publicity, and instead considers it a personal, privacy right that dies with its holder—Monroe has been held to not have a post-death right of publicity and her image can be freely used by others (in most states).
Some states, notably Washington state, have recently begun to extend post-mortem rights to anyone, even those who have no connection to the state, so long as the uses of the dead person’s identity are sold or distributed within that state. Hawaii recently added a similar provision to its law.
The proposed Minnesota bill seems quite broad in nature. It covers name, voice, signature, photograph, and likeness and prohibits uses on or in “products, merchandise, or goods,” “for purposes of advertising or selling,” or for fundraising. The post-mortem right lasts for at least fifty (50) years after death and can continue forever if used for “commercial purposes.” Notably, it does not have a statutory damages provision so only seems directed at those with already valuable personalities. The bill has a fair use provision that excludes uses in “news, public affairs, or sports broadcast or account,” but does not protect expressive works such as movies, books, videogames, or plays.
No surprise here—the rights are made retroactive so they would cover Prince’s rights. One might as well just call this the "Prince Protection Act."
Of course, the legislature thinks they are doing Prince and his heirs a favor by trying to rush through post-mortem rights for him. But whoever winds up getting the rights to his estate may have another thing coming their way. As the ongoing litigation with the Michael Jackson estate demonstrates, if the right of publicity is treated as a fully transferable property right—as this proposed Minnesota bill provides—then it can be taxed by the IRS at its highest and best use which the IRS deems a fully commercialized use of Prince’s identity. Such valuations are difficult to make in the context of the right of publicity, but the IRS is seeking to collect a staggering sum in taxes on the value of Jackson’s right of publicity.
I have written elsewhere about the many dangers of making the right of publicity fully transferable, but one such danger is that estates will be forced to commercialize the deceased’s identity even if they do not wish to do so, or even if they do wish to commercialize the person’s name or likeness, but want to do so in a more limited fashion. One way to avoid this is to take Robin William’s approach of specifically stating in one’s will that one is limiting the commercialization of one’s identity post-death, at least for a certain period of time. Otherwise one’s heirs will be burdened with an unpredictable and giant tax bill, and forced to sell the identity of their loved one on things from t-shirts, to mugs, to coasters even if that is not what they had in mind to honor the deceased.
Of course, clever estate planning—something Prince apparently failed to do— is not the only way to avoid such an outcome. If Minnesota is determined to go forward with such a bill, it could treat the right of publicity as a limited property right. One that is not fully transferable, one that cannot be taken by creditors or valued as part of one’s estate. And while it’s at it, Minnesota should do a much better job of protecting the First Amendment interests of creators and the public by clarifying, at the very least, that expressive works are also excluded from any right of publicity statute’s purview.