Legislature should protect Prince's right of publicity

It's hard to believe that long-dead performers still make so much money that Forbes dedicated part of its website to the topic.

It ranked Michael Jackson as its "top-earning dead celebrity" last year, which is both creepy and the kind of private financial information Forbes typically publishes.

Whether the late Minnesota musical legend Prince pops up on this list next depends on a lot of factors that are not easily known. One of them is whether our state legislators have the good sense to make it easier for Prince's estate to legally protect the value of his image and likeness.

Putting a number on what Prince's identity may still be worth isn't an easy valuation assignment, but no one has to spark up an Excel spreadsheet to determine that it's got to be greater than zero. At 50 paces, an image of Prince on a purple poster would obviously be of him. Think of the sales potential.

Controlling the commercial use of a person's image and likeness is called the right of publicity, and since Prince died last month a bill has been moving in the Legislature to protect that right.

As described by Joel Leviton of the Minneapolis law firm Stinson Leonard Street, Bremer Trust was assigned by the court to act as special administrator for Prince's estate and started the process of assessing what's in it. One of the first problems identified by Stinson Leonard, Bremer's counsel, was the threat of his image getting ripped off.

There is a history of Minnesota case law protecting living artists, and extending it beyond their lives "is really something that Minnesota should have [in statute] anyway," Leviton said. "It's another property right that artists should have. "

The Minneapolis writer and performer Dessa, of the hip-hop group Doomtree collective, reacted the same way once she learned more about it.

She said she hadn't given it much thought before a show at the music festival Coachella in 2012, when the rapper Tupac Shakur performed 16 years after his death. It wasn't a séance, of course; his appearance had come via a cleverly created hologram.

A lot of observers thought seeing Tupac on stage was just odd. But as performers thought more about it, she said, the more questions bubbled up about who had decided this was a good time and place to use the voice and image of a star performer who was long dead.

"As someone who makes her living in this business," Dessa said, "the idea of working your whole life to try to build the reputation that you'd like and that represents your interests and values, the idea of that hard work being undone after you die is frightening. And disheartening. Reputation is the only thing an artist has for her whole career.

"It's almost enough to get me to push off my afternoon to-do list and do a will right now," she continued. "'Mom, if I get hit by a car, don't let Marlboro use my image.'"

As Leviton explained, right-of-publicity laws seem to pop up across the country after a superstar dies. In California, the law has evolved since the passing of King of Pop Michael Jackson. Tennessee has had a law since the mid-1980s, and it's doubtful legislators there would've cared much without prompting from the estate of Elvis Presley.

"It does come up here" Leviton said. "There is unauthorized merchandise out there. Not just with Prince, and it should be clear that the owners have the right to prevent that. I wouldn't say it's rare."

Older recording artists, he said, likely signed away rights to their own recorded music when they were young and had little money. At the end of their career, all they have of value may be their name and image.

Few things get approved on a unanimous voice vote at the Legislature, of course, and opposition has arisen to the right-of-publicity law here. The national Electronic Frontier Foundation posted a note last week titled, "Minnesota Legislators Go Crazy, Pushing Dangerous PRINCE Act."

Their argument, essentially, is a free speech one. There were lots of things the group didn't like about the proposed law here in Minnesota. One point they made was that estates might see an offending item online and follow up with an effort to take down the whole website.

The Elvis Presley's estate hasn't decided to try to shut down all of the Elvis impersonators trying to make a living, apparently having arrived at the conclusion that collecting $50 to preside over a wedding as the King is an artistic performance.

"You can even list a bunch of artists in your article if you want; it'll show that's protected," Leviton said. "You can mention Elvis 12 times if you want."

What Prince would've thought of this kind of right after death can't be known, of course. There hasn't been much beyond speculation on what he would've wanted done with his unreleased recordings and other intellectual property.

On the other hand, there can't be any Minnesota athlete or performer alive who would be comfortable knowing that a guy like me might try to buy 10,000 purple T-shirts and start selling their likeness for $25 a pop across the street from the funeral.