from the subtle,-guys,-subtle dept
We've written many posts on the area of so-called
"publicity rights" laws. These are state laws that try to create a newish form of intellectual property around someone's "likeness" or other identifying features. A few years ago, Eriq Gardner wrote the definitive piece detailing
the rise of publicity rights as a new way to try to lock down "protections" for things that don't really need to be protected. The initial intent behind many of these laws was to avoid a situation where there was a false endorsement -- basically to stop someone from putting an image or likeness of a famous person in an ad to imply support. But the law has (not surprisingly) expanded over time, and there have been many, many crazy battles over publicity rights -- including ones concerning
Marilyn Monroe,
Manuel Noriega,
Katherine Heigl,
Lindsay Lohan,
Lindsay Lohan and
Lindsay Lohan.
Since there's no federal law over this, it's all based on a bunch of state laws, which vary quite a bit from state to state. For example, a big part of the publicity rights case concerning Marilyn Monroe was over whether
NY or California publicity rights laws applied to her estate. In California, the publicity rights continue after death. In NY, they do not. For
tax reasons, after Monroe died, her estate convinced California tax authorities that Monroe was a NY resident at the time of her death. That saved them on some taxes, but it created a problem for them when they realized it meant that they couldn't use publicity rights laws in NY. So they suddenly started claiming publicity rights in California anyway, until a court
rejected that plan.
That brings us to Prince. The artist who
both embraced and struggled with the internet throughout his lifetime, was always focused on one thing in particular: control. While some of his actions seemed contradictory (embracing the internet at one moment and slamming it the next), when viewed through the lens of "he wanted ultimate control," the actions fit a pretty clear reasoning. But, it turns out that Minnesota, where Prince famously lived, there is no post-mortem publicity rights.
No worries, thought some Minnesota legislators, apparently, let's just
rush through as quickly as possible a
brand new law to create massive and widespread publicity rights for the deceased. Hell, they thought, why not call it the PRINCE Act (Personal Rights in Names Can Endure Act -- because, nothing matters any more).
Of course, like basically
any law that is rushed through in response to an event, like someone's death, it appears that the people rushing it through haven't spent any time thinking about the actual impact of what they're proposing. Instead, it appears that Rep. Joe Hoppe wanted to get his name in the headlines as "helping" the Prince estate to stop the "exploitation" of Prince. Except this law is insanely broad and will be abused to stifle expression. The bill first declares:
An individual has a property right in the use of that
individual's name, voice, signature, photograph, and likeness in any medium in any manner.
That's pretty damn broad. To be fair, there are a few limitations included in the bill. It does allow for fair use, but that's limited to use that's "news, public affairs or sports broadcast." No idea why a sports broadcast is exempted here, but okay. The law also can be read to only apply to commercial use, since it applies to use "on or in products, merchandise or goods" or "for purposes of advertising or selling..." or for fund raising. And there is a limitation that just using the "name, voice, signature or photograph" "in a commercial medium does not constitute a use for purposes of advertising or soliciting solely because the material containing the use is commercially sponsored or contains paid advertising." So you could argue that you won't get hit for just posting a photo on social media or something, even if there are ads on the page.
But seeing how widely we've seen publicity rights claims abused, you could easily see this being abused. Any Prince cover artist would basically be required to get a license. Someone writing a book about Prince or that discusses Prince might violate the law -- and, at the very least, might face a lawsuit to determine if it's fair use. And, somewhat ironically, as our own Tim Cushing
points out, one could read
the bill itself as violating itself. After all, it's using Prince's name, and it's clearly being used to "advertise." You could also make a strong argument that it's being used for fund raising of the politicians pushing it.
In fact, Hoppe even admits that he's deliberately exploiting Prince's name:
“I’ve had people say, `Is it just prompted by the death of Prince?’ Yeah, essentially it is. Really, what it’s doing is it’s attempting to recognize the right of publicity postmortem,” Hoppe said.
So it's okay for Hoppe to exploit Prince's name and death... for the purpose of making sure no one else exploit's Prince's name and death? How does that work.
I know that Prince
really liked to have control over everything, but it really feels a lot like this move is about figuring out how Prince's relatives will be allowed to cash in on his estate. It's not clear why politicians should be aiding such a maneuver.
Filed Under: intellectual property, joe hoppe, minnesota, prince, prince act, publicity rights
