Just a few weeks after his death, some Minnesota legislators are using Prince’s name to ram through a dangerous publicity rights law that will give his heirs – and the heirs of any other Minnesotan – broad and indefinite rights to shut down all kind of legitimate speech and activities in perpetuity.
Defenders of the law will insist that there’s nothing to see here. After all, publicity rights laws aren’t new. The right of publicity is a recent offshoot of privacy law that gives a (human) person the right to limit the public use of her name, likeness and/or identity for commercial purposes like an advertisement. The original idea makes sense: using someone's face to sell soap or gum, for example, might be embarrassing for that person and she should have the right to prevent it.
But states have expanded the law well beyond its original boundaries. For example, the right was once understood to be limited to a person’s name and likeness, but now it can mean just about anything that “evokes” a person’s identity, such as a phrase associated with a celebrity (like “Here’s Johnny,”) or even a cartoonish robot dressed like a celebrity. And in some states, your heirs can invoke the right long after you are dead and, presumably, in no position to be embarrassed by any sordid commercial associations. In other words, it’s become a money-making machine that can be targeted at all kinds of activities.
What is worse, some courts have abandoned traditional tests that helped make sure that publicity rights claims couldn’t be used to shut down legitimate speech that happened to refer to a celebrity or use her likeness in reasonable ways (in biopics, for example).
Publicity rights are an increasingly dangerous weapon against legitimate speech. But this rushed Minnesota proposal is the worst we’ve seen so far. For one thing, rather than setting a maximum term, it actually sets a minimum term (50 years) and will allow an estate to keep asserting the right to control uses of a celebrity’s name and likeness forever, unless and until someone can prove that they’ve abandoned it. As a practical matter, that means heirs could use this right to control many uses of a work created by a celebrity even after the copyright has long since expired. Suppose that when Prince’s works finally enter the public domain in 2086, a group of fans wants to throw a benefit concert featuring Prince songs. Under copyright law, that would be fine. But under the proposed Minnesota law, they couldn’t use Prince’s name.
The proposed bill would also allow a celebrity’s estate to seek more than financial compensation: it can also get a court order taking content offline. In the internet context, this kind of seizure almost always sweeps up perfectly legitimate speech – it is difficult to “seize” just part of a website.
There are a lot of other problems with the bill, such as vague and limited protections for fair uses (watch out, fan sites!), and a misguided characterization of the right of publicity as a “property” right. As we’ve seen with copyrights and trademarks, treating limited monopolies in certain expression as a "property" leads people to embrace broad and dangerous new forms of protection for that "property."
This is a bad idea, badly executed. We disagreed with Prince on copyright issues more than once, but there's no question that he was a musical genius that deserves to be widely celebrated. We hate to see his passing used an excuse to manufacture yet another legal club against such celebrations. Minnesotans, act now to tell your legislators that this is going much too fast.