Friday, 27 May 2016
The recent passing of Prince left many fans in mourning and potential heirs clamouring for a piece of his estate. The singer, who died intestate, left behind a wealth of copyright protected works. His right to publicity, however, did not survive him, as the common law right in Minnesota, where Prince was domiciled, only applies to the living.
The Minnesota State Legislature hastily attempted to pass a bill to change this, by creating a post-mortem right of publicity. On May 9, the Bill, entitled Personal Rights in Names Can Endure Act, was put forward, two weeks before the end of the Legislature’s session on May 23. The bill was subsequently pulled amid concerns that it was not properly thought out and could have unintended consequences, but this Kat commends the carefully created name.
The current law in Minnesota
Minnesota recognises a common law right of publicity and the tort of appropriation of name and likeness. Even though the right of publicity is not statutory, Minnesota’s common law approach provides extensive protection as it is not delimited to specific personal attributes. Instead, the right protects against unauthorised uses of ‘identity’ for commercial purposes. This can extend to the names of characters portrayed by an individual, as occurred in the case of , 1991 WL 13728 (D. Minn. 1991) where the plaintiff successfully claimed for use of his character name ‘Spanky’.
The potential for a broad interpretation of ‘identity’ is best illustrated by the Californian case of White v. Samsung Electronics Am., Inc., 971 F.2s 1395 (9th Cir. 1992). In this case, Wheel of Fortune presenter Vanna White claimed that Samsung had infringed her right of publicity by creating an advertisement featuring a robot, wearing a dress, standing next to a replica of the ‘Wheel of Fortune’ board. White claimed this was an unauthorised use of her likeness for a commercial purpose. The 9th Circuit Court of Appeals dismissed White’s appeal as they opined that the robot did not constitute likeness within the meaning of the California publicity statute. However, the found her common law right of publicity infringed as the advertisement evoked her ‘identity’.
The theoretical justification behind Minnesota’s law is Lockean labour theory, as the court in McFarland stated that  “A celebrity’s identity, embodied in his name, likeness, and other personal characteristics, is the “fruit of his labor” and becomes a type of property entitled to legal protection.” Labour theory is often cited as a justification for persona protection in US courts, and was advanced by Nimmer in his seminal 1954 article, published the year after the right of publicity was first recognised. This theory has been criticised by Madow as it does not take into account that fame does not result solely from the efforts of the individual. Stylists, publicists and producers crafted Prince into the superstar that he was. Also, Prince undoubtedly worked hard to achieve his stardom, but the Minnesota right applies to every individual, regardless of fame. There is no labour requirement, which means even celebrities who have rose to the spotlight through luck or connections, benefit from this protection.
Implications of a post-mortem right
The Bill proposed a duration of 50 years post-mortem. Since Minnesota’s common law approach gives a broad interpretation to ‘identity’, Prince’s estate would be able to require authorisation for any use which evokes Prince. This broad protection would have chilling effects on posthumous memorabilia and advertising uses, even where his attributes have not been directly used. In the meantime, it is likely that the merchandising industry will capitalise on his death.
The Bill has been shelved for now, but may be reconsidered next year.
If the Bill passes into law, it would give new meaning to the lyrics from Prince’s song, ‘Let’s go Crazy’:
But I’m here to tell you
There’s something else