Bob CollinsAccomplishments have been hard to find so far with the Minnesota Legislature but a law benefiting the estate of Prince is chugging along despite increasing warnings that it’s going too fast and with not enough inspection.
Rarely at this time of the year does anyone ask the Minnesota Legislature, “what’s the rush?” But, what’s the rush?
The Electronic Frontier Foundation indicates it’s not so much opposed to the specific reasons for the laws (protecting Prince’s image from commercialization), it’s concerned about the unintended consequences of charging forward without the inspection that most other legislation gets.
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.
EFF says the “right of publicity” is not a property right. It’s organized a lobbying campaign on short notice against the proposal.
The opposition to the bill hit the Star Tribune’s op-ed page today, too, with William McGeveran, a University of Minnesota law professor who specializes in trademark law, calling it “pure folly.”
Given these drawbacks, we’d better have a clear understanding of the justification for the PRINCE Act. But its sponsors are pretty fuzzy: They just say it seems fair. Maybe so. But we usually have more powerful rationales for intellectual property. We protect trademarks to prevent copycats from deceiving consumers who think they are getting an officially approved product or service. They persist as long as the sales do. We grant copyright because it rewards and encourages creators who contribute learned and artistic works to our culture. Copyrights generally last 70 years after the creator’s death; Prince’s heirs will control his music until 2086. Celebrities like Prince, and their heirs, already enjoy both these forms of intellectual property. Why do they need even more? Music and movie stars hardly need additional special privileges to encourage them to pursue fame.
The bill was introduced Monday with just two weeks left in the legislative session. Considering that the legislation would apply retroactively, what’s the rush?
“If the Legislature simply waits until next year, it can still decide to bestow this benefit on Prince’s estate, but it can also take the time to resolve many other complex issues,” McGeveran said.
“We have to be clear why we’re doing this,” Sharon Sandeen, a Mitchell Hamline School of Law professor, told MPR News’ Brian Bakst this week. “If it’s to prevent people from misusing an honored person’s image and reputation so forth and so on for a reasonable period of time after their death, I’m all for that. If it’s to give money to the heirs, multiple generations, I’m wondering why we’d do that.”
Related: See the proposed statute
