A Minnesota Senate bill that would allow Prince’s heirs to protect the late pop star’s name, voice, photograph and overall likeness against unauthorized merchandising hit the skids Wednesday evening as legal observers called the proposal flawed and an affront to free speech.
The so-called PRINCE bill – short for “Personal Rights in Names Can Endure” – seemed to be on a fast track, as many Minnesota lawmakers expressed a desire to get the measure passed before the end of the legislative session in less than two weeks. The House Civil Law and Data Practices Committee passed a companion bill Tuesday that is awaiting a vote by the full House.
But members of the Senate Judiciary Committee moved to table the measure until Monday to allow sponsors to incorporate some of the opponents’ suggestions and concerns into the legislation. The 2015-2016 legislative session is scheduled to end on May 23.
Joel Leviton, an attorney who represents Bremer Trust, the court-appointed administrator for Prince’s estate, told the judiciary panel Wednesday, “For better or worse, Prince is the first Minnesota celebrity to reside here, to pass away here and likely go through probate with a right of publicity that has value.”
Prince Rogers Nelson died on April 21, and the Minneapolis resident left no will.
Leviton said the estate wanted lawmakers to pass a bill establishing that the star’s postmortem publicity rights – that is, protection of Prince’s image from unauthorized commercial use – rest with the heirs. He stressed that such a declared postmortem right would allow the estate to be administered in a more orderly fashion.
In the current version of the bill, publicity rights of anyone who died in Minnesota over the past 50 years would be protected.
“It’s unusual to introduce a bill of this complexity this late in the legislative session,” Jennifer Rothman, a professor at Loyola Law School in Los Angeles and an expert on publicity rights, told AMI Newsline. “I think they need to take more time and prepare full hearings.”
In a blog post this week, Rothman criticized the original bill’s language for not making clear exemptions for the use of deceased celebrities’ images in expressive works, such as videogames and plays. And she pointed out that publicity rights can pose an unexpected financial burden for estates because establishing the right of publicity as a transferable property right means that the Internal Revenue Service can tax it based on a maximum estimated valuation.
Rothman advised Minnesota lawmakers to make the right of publicity more limited so that it would not be valued as part of an estate.
“Everybody benefits from having a more limited right – the public as well as public figures and heirs,” she said.
Some legal observers also worried that early versions of the bill might allow the author of an unauthorized biography of Prince to be sued by the singer's heirs, but Rothman doubted that could happen.
"That would be unlikely to be successful,” she said. “That would fall into the news exemption or a First Amendment defense."
State Sen. Bobby Joe Champion, a Democrat who sponsored the Senate measure, told the Judiciary Committee Wednesday that he had attended a commemoration for Prince and noted that people were selling T-shirts with the pop star’s image on them without the permission of Prince’s heirs. Unlike 17 other states, Minnesota does not have a law extending the right of publicity beyond death.
“Once a person passes, we didn’t have anything to respond to that void in the law,” Champion said.
Though proponents argued the bill would allow the use of deceased celebrities’ images for news, public affairs, commentary and criticism, some critics expressed concerns that celebrities’ estates could use the bill as a powerful weapon of intimidation against free speech.
Mark Anfinson, an attorney for the Minnesota Newspaper Association, said the bill would have a huge impact on communications companies. The proposal is loaded with problems and will produce litigation, uncertainty and wasted time, he said.
Other problems include a lack of language about digital technologies and potential effects for website owners, said Anfinson, who told AMI Newswire that he expected the bill's proponents to sort out the problems before the legislative session ends.
William McGeveran, a law professor at the University of Minnesota, told lawmakers Wednesday, “This is not a bill that is appropriate to consider in two weeks’ time,” adding that it goes well beyond a simple tweak of Minnesota’s laws.