The untimely death of Prince, our hometown music legend, affected Minnesotans deeply. The reaction was immediate, from the impromptu party outside First Avenue to purple lights on bridges, cathedrals and skyscrapers.
Unfortunately, the Minnesota Legislature has responded in a different way, by hastily considering a proposal called the “Personal Rights in Names Can Endure Act” — that is, the “PRINCE Act.” This bill would establish a statutory right of publicity in Minnesota for the first time, creating a property right over use of a celebrity’s “name, voice, signature, photograph and likeness in any medium in any manner.” After the celebrity’s death, heirs would control the new rights for at least 50 years and potentially for 100 years if they continue to profit from them.
Publicity rights are very controversial. Adopting them in Minnesota would be a dramatic step, applicable to every celebrity, not just the Purple One. Yet the PRINCE Act was introduced on Monday, with just two weeks left in this year’s legislative session.
Enacting it in such a last-minute legislative flurry would be a terrible mistake. There are too many complex issues to work through — and, despite Prince’s sudden passing, there is no emergency that requires such speed.
Listing just a few of the serious questions about this bill demonstrates the folly of rushing:
1. What about speech? As first drafted, currently written, the PRINCE Act contained a very narrow, limited free-speech exception for news, public affairs and sports reports. When critics like me immediately pointed out that this narrow rule probably violated the First Amendment, the bill was changed to add a laundry list of other types of art and commentary. These 11th-hour additions are based on old media and do not mention, for example, video games or websites. There has been no time to consider what else might have been overlooked. Moreover, even the improved PRINCE Act still would require case-by-case adjudication in court, which would be an expensive and difficult undertaking for any artist or author defendant sued by the celebrity’s estate. And celebrities and their heirs can threaten suit whenever they choose. That prospect would scare many people away from exercising legitimate speech rights in the first place.
2. What about the taxes? Prof. Jennifer Rothman, another expert on publicity rights, notes that Michael Jackson’s estate is now embroiled in a protracted fight with the IRS over the commercial value of his image. Instead of helping Prince’s family and other celebrity heirs, the Legislature may be sticking them with a huge tax bill. Ironically, an estate could find itself forced to sell T-shirts and coffee mugs with a celebrity’s likeness — even against family members’ wishes — because that’s the only way to pay taxes calculated using the full potential value of publicity rights.
3. What’s the purpose? Given these drawbacks, we’d better have a clear understanding of the justification for the PRINCE Act. But its sponsors are pretty fuzzy: They just say it seems fair. Maybe so. But we usually have more powerful rationales for intellectual property. We protect trademarks to prevent copycats from deceiving consumers who think they are getting an officially approved product or service. They persist as long as the sales do. We grant copyright because it rewards and encourages creators who contribute learned and artistic works to our culture. Copyrights generally last 70 years after the creator’s death; Prince’s heirs will control his music until 2086. Celebrities like Prince, and their heirs, already enjoy both these forms of intellectual property. Why do they need even more? Music and movie stars hardly need additional special privileges to encourage them to pursue fame.
4. What’s the rush? That leads to the final, and most fundamental, question. As proposed, the PRINCE Act would be retroactive — meaning it would cover celebrities like Prince who are already deceased when it passes. If the Legislature simply waits until next year, it can still decide to bestow this benefit on Prince’s estate, but it can also take the time to resolve many other complex issues.
Prince’s artistic brilliance came from his painstaking perfectionism about every note in his music.
The Legislature should follow his example and take its time crafting a careful and harmonious law in his honor — not a rush job.
William McGeveran is a law professor at the University of Minnesota who specializes in trademark and privacy law.