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: intellectual property, joe hoppe, minnesota, prince, prince act, publicity rights


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  • icon
    Mason Wheeler (profile), 10 May 2016 @ 8:40am

    No idea why a sports broadcast is exempted here, but okay.

    Most likely to head off potential stupid lawsuits where players go "hey, I don't like what the commentary guys said about me, and according to this law they didn't actually have the right to say that, so I can sue them over it!"

    reply to this | link to this | view in chronology ]

    • icon
      Blackfiredragon13 (profile), 10 May 2016 @ 9:34am

      Re:

      Had the exact same thought myself.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 10 May 2016 @ 10:37am

        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.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 8:51am

    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

    Because fuck the entire concept of irony, that's how.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 8:52am

    Its a law of nature, the vultures gather to fight over the remains before the body has cooled down.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 10 May 2016 @ 9:15am

    Irony - Prince loses control

    The ironic thing here is that Prince "wanted ultimate control".

    Now that he's dead, this bill grants total power over his name and image to his estate, over which he has no control at all (since he's dead).

    Seems to me the exact opposite of what Prince would have wanted.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 10 May 2016 @ 9:21am

    The artist formerly known as PRINTS

    Just use a different name.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 9:22am

    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.

    reply to this | link to this | view in chronology ]

    • icon
      DannyB (profile), 10 May 2016 @ 9:52am

      Re:

      The people who inherit the estate would inherit the 'property right' for anyone to use* that word that sounds like PRINTS.

      I can see that British royalty may end up owing a significant sum in licensing costs to the estate of the artist.

      *Or at least that is what this will grow into

      reply to this | link to this | view in chronology ]

    • icon
      Mike Masnick (profile), 10 May 2016 @ 10:15am

      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.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 10 May 2016 @ 1:39pm

        Re: Re:

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

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 10 May 2016 @ 4:12pm

          Re: Re: Re:

          Why would that matter?

          reply to this | link to this | view in chronology ]

        • icon
          Mike Masnick (profile), 10 May 2016 @ 11:34pm

          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.

          reply to this | link to this | view in chronology ]

    • identicon
      DogBreath, 10 May 2016 @ 11:12am

      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.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 9:23am

    So let's honor this bill

    We'll start by never again mentioning the name of Rep. Joe Hoppe.

    Oops.

    reply to this | link to this | view in chronology ]

  • icon
    DannyB (profile), 10 May 2016 @ 9:25am

    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.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 9:31am

    I live in MN and it's really sad watching everyone here practically tripping over one another trying to capitalize on Prince's death from the "relatives" coming out of the woodwork trying to claim some of his estate to the media to lawmakers now trying to pass horrible laws with his name.

    reply to this | link to this | view in chronology ]

  • identicon
    DogBreath, 10 May 2016 @ 10:11am

    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".

    reply to this | link to this | view in chronology ]

  • identicon
    Regret, 10 May 2016 @ 10:39am

    "It's not clear why politicians should be aiding such a maneuver."

    I'll explain with a symbol (in honor of Prince): $

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 12:22pm

    KFC ?

    I wonder what the late Colonel's family is thinking of all this, now?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 May 2016 @ 1:48pm

    He's dead. Everyone knows he's dead. Who fucking cares?

    It's pretty clear to anyone with a pulse that a dead person isn't endorsing anything... Except maybe caskets and worms

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 11 May 2016 @ 1:46am

      Re:

      "He's dead. Everyone knows he's dead. Who fucking cares?"

      The people who stand to try and make a lot of money from the property he left behind. Given that he reportedly didn't have a will, that's a lot of people caring.

      reply to this | link to this | view in chronology ]

  • icon
    PaulT (profile), 11 May 2016 @ 1:45am

    "I know that Prince really liked to have control over everything"

    *try* to have control over everything, at least. There's plenty to show he wasn't successful, even in life.

    reply to this | link to this | view in chronology ]

  • icon
    M. Alan Thomas II (profile), 12 May 2016 @ 12:46am

    Of course, if it passes, they'll have to change its name to comply with itself. Then it will be "The Bill Formerly Known as PRINCE."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 12 May 2016 @ 2:45am

    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.

    reply to this | link to this | view in chronology ]


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