Backlash from cultural and professional sports interests led Minnesota legislators to scale back a measure that emerged after Prince’s unexpected death that would restrict unauthorized use of an artist’s image or likeness after they die.
The measure, moving rapidly through the Legislature, is called the PRINCE Act, which stands for Personal Rights in Names Can Endure.
“I think it’s a good idea just to protect what he worked to establish,” said House sponsor Rep. Joe Hoppe, R-Chaska, whose district includes Prince’s Paisley Park compound in Chanhassen.
Prince was found dead at Paisley Park on April 21. Within days, the law firm representing his estate’s special administrator was asking legislators to clarify Minnesota common law governing the ability of well-known people to control who profits from their work — for instance, in T-shirts with images of Prince.
Specifically, bills moving through the state House and Senate would make it clear that such control does not lapse post-mortem.
“So it’s clear that you cannot use someone’s name and likeness for commercial purposes even after that person dies,” said Joel Leviton, a Minneapolis attorney who represents the Bremer Trust, the court-appointed administrator of Prince’s estate. That means that once Prince’s heirs are legally designated, they will control those rights for 50 years following the date of his death. Rights to Prince’s music are not at issue, as they are controlled under existing copyright law.
At the request of the trust, legislators initially proposed wider protections for guardians of image and likeness, while also carving out exemptions for media and other public uses. That drew fire from critics on both sides of the issue: First Amendment die-hards and supporters of artistic expression who said the restrictions go too far, with representatives of pro athletes calling the exemptions too loose.
Arts, media arguments
“Arts organizations need to be able to inform the public not only about upcoming productions and exhibitions, but about who they are and what they do,” Guthrie Theater Managing Director Jennifer Bielstein wrote this week to a group of senators on behalf of the Guthrie and the Walker Art Center.
Bielstein spelled out an example: Under the proposal as initially drafted, the Guthrie could produce a play about a famous person’s life story and advertise it using that person’s name or likeness. However, Guthrie officials believe that using that same name and likeness to promote a full season’s productions, in soliciting donations or inviting people to a fundraising event, or in posting photographs from the production inside the theater could run afoul of the proposal.
An approach like that likely would force arts organizations to “squander resources on legal fees, compliance expenses and litigation because of the unfair burdens the bill would impose upon them,” Bielstein wrote.
While the bill identified exemptions meant to protect arts and media organizations, Mitchell Hamline School of Law Prof. Sharon Sandeen said those exemptions left many questions unanswered. For example, she said, could a T-shirt printer who enters into a contract to print unauthorized Prince T-shirts be held liable even if it wasn’t their idea?
Sandeen said freelance photographers trying to sell images of famous people didn’t receive sufficient protections in the legislation as it was initially conceived. “There were just a lot of people coming out of the woodwork to oppose it,” she said.
Pro athletes objected
At the same time, unions representing pro baseball, football, basketball, hockey and soccer players complained that exemptions included in the initial proposal were actually too broad and that they would have undermined existing controls over use of their images.
With less than a week left in the legislative session, and with criticism swirling from numerous prominent Minnesota institutions, members of the state Senate Judiciary Committee on Tuesday night downscaled the bill’s ramifications. What’s left is simply the clarification of common law that publicity rights extend past death.
“It’s a stopgap measure that recognizes that claim continues to exist even upon death,” Leviton said. “Hopefully, we’ll work together to come up with a more robust, comprehensive right of publicity statute.”
Hoppe, the bill’s House sponsor, said he was open to scaling back the proposal. Sen. Bobby Joe Champion, DFL-Minneapolis and sponsor of the bill in the Senate, said he intends to convene a working group to assemble a broader proposal that the Legislature could revisit in 2017. Right now, 17 U.S. states have similar laws on their books.
Even after senators curtailed the proposal’s reach, objections remained among some powerful interests.
Elizabeth Mottur, a lobbyist for the Motion Picture Association of America, said it could expose filmmakers to lawsuits if they portray historical characters or even use historical footage in movies. She used “Forrest Gump” as an example.
“You can say, yes, that movies are protected by the First Amendment,” Mottur said. “Yes, but now the burden is being shifted to the company to go to court and fight the charge and prove their First Amendment right.”