Minnesota's Broad Publicity Rights Law, The PRINCE Act, So Broad That It May Violate Itself

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: , , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Minnesota's Broad Publicity Rights Law, The PRINCE Act, So Broad That It May Violate Itself”

Subscribe: RSS Leave a comment
27 Comments
Anonymous Coward says:

Re: Re: Re:

On behalf of Mr. Mason Wheeler, I’m here to communicate to you that Mr. Mason Wheeler’s thoughts are his own and your thoughts, exactly the same or similar, infringe on his rights.
Mr. Mason Wheeler would like to request that you cease having similar thoughts to his, otherwise he will be required to sue you.
If, however, your comment was made in the practice of Competitive Internet Commenting, please disregard this notice.

Anonymous Coward says:

Would this even possibly protect prince’s estate? IT seems like an ex post facto law to me. I can see it benefiting the estates of famous people who die in the future, but it wouldn’t do anything for the estate of the person it is named after. As a Minnesota resident I probably should write to my representation and point out how stupid this act is.

Mike Masnick (profile) says:

Re: Re:

Would this even possibly protect prince’s estate? IT seems like an ex post facto law to me. I can see it benefiting the estates of famous people who die in the future, but it wouldn’t do anything for the estate of the person it is named after. As a Minnesota resident I probably should write to my representation and point out how stupid this act is.

Well, the law explicitly says: ” The rights recognized by this act are expressly made retroactive, including to those deceased individuals who died before the effective
date of this act.”

So, yeah, it’s designed to cover Prince.

Mike Masnick (profile) says:

Re: Re: Re: Re:

Doesn’t that make it unconstitutional, as an explicitly ex post facto law, then?

I don’t think so, though others with more legal expertise may weigh in.

For it to be a problem as an ex post facto law, that would mean changing an action that was itself legal when the action occurred and then making it retroactively illegal. That is, the problem would be in a specific action that someone did and even though that action was legal at the time, later changing it to illegal and then retroactively applying it to the actor. That would be unconstitutional, in part because how can you obey a law that doesn’t exist?

THIS is different. They’re not criminalizing a past action. Instead, they’re just making a law that creates a certain class of protected information, and then saying it covers people who have died in the past. That’s annoying but not an ex post facto issue.

DogBreath says:

Re: Re:

Minnesota is trying to pass only one law covering it all, thereby saving the Minnesota taxpayers the extra expense of later having to pass another self-serving law. That, or the Minnesota state government just discovered they don’t get paid by the number of laws they can pass in one fiscal year.

In California the Publicity Rights Law originally did not cover any deaths before the law was passed in 1985, but they eventually corrected that with SB771 in 2007, which took effect Jan 1, 2008. This covered dead people ALL the way back to anyone who died after Jan 1, 1938.

SB771 was signed into law by none other than Gov Arnold Schwarzenegger, “Defender of the rights of dead celebrities everywhere”. Well, at least if that “everywhere” only takes place in California.

California Celebrities Rights Act

Shaw Family Archives Ltd. v. CMG Worldwide, Inc., 486 F.Supp.2d 309 (S.D.N.Y., 2007) ruled on May 7, 2007 that in regard to Marilyn Monroe, because she died before California’s Celebrity Rights Act was passed in 1985, and the state of New York does not recognize a right of publicity after the artist’s death, her name, image, and voice are now in the public domain in the states of California and New York. By implication, they would also be in the public domain in any state that, at the time of Monroe’s death in 1962, did not recognize a right of publicity that survived the artist’s death. In response to that court ruling, California passed legislation that created descendible rights of publicity that last 70 years after death, retroactively for any person deceased after January 1, 1938. A similar law has failed in the New York Legislature.

DannyB (profile) says:

Laws hastily passed

Many (too many) decades ago I came across a paperback book. Funny Laws.

In Boston it is illegal to bathe without authorization of a physician.

And I won’t even mention how many crazy laws there are in various states about selling things (like toothbrushes) on Sunday.

Lawmakers that pass ridiculous laws in haste should lose their privileged position. Laws need to be good. Well thought out. Debated.

DogBreath says:

Got to love those "ex post mortuus" laws

Isn’t it great when we live in a time when someone can make a law that gives rights to the dead, even after the fact of them having already died?

What could possibly be next? Extending copyrights for the dead? I mean what could possibly be wrong with that?

Oh… Copyright protection 70 years after death does not encourage creativity

A retrospective extension – one that applies to prevent works that were poised to enter the public domain from doing so – cannot provide an incentive for authors, because the authors of the works affected are dead. Dead men tell no tales, nor do they write much poetry.

In the immortal words of Emily Litella, “Never Mind”.

Anonymous Coward says:

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.

Follow the $$$. If Hoppe is hoping to get campaign fund donations from his family, he’s going the right way about it.

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...