Minnesota lawmakers are working to update publicity rights laws in wake of Prince’s death, creating the possibility that the rock superstar and Minneapolis native known for vigorously asserting his copyright interests in cases such as California’s famous “Dancing Baby” may also leave a right-to-publicity legacy.
As of now, Minnesota doesn’t have a post-death publicity right. But this week, prompted by concerns surrounding Prince’s surviving rights, legislators introduced bills in both the state Senate and House of Representatives to allow an estate or heirs to extend publicity rights for at least 50 years after death.
If the rights are continually exercised, that extension could go even longer. But they could also be terminated, under the proposed legislation, following two years of non-use.
Also known as personality rights, publicity rights are rights that an individual holds in his or her identity. Such rights let a person decide how and when their identity, name, image, likeness, persona, voice or any other distinctive personal characteristic can be exploited commercially. Most often, they are exercised by celebrities.
Publicity rights are rooted in the common law of privacy in the sense that a person should arguably be allowed to prevent someone else from associating his or her identity or reputation with a commercial product without permission. A claim of commercial misappropriation of a person’s name or likeness is the common law tort action in privacy that serves as the basis for modern publicity rights.
In the United States, publicity rights are a matter of state, rather than federal, law. The common law in 14 states recognizes publicity rights. In 17 states, there are specific publicity rights statutes, some of which overlap with common law. However, a crucial difference is that publicity rights in common law typically do not survive the person’s death.
Much of the action with publicity rights takes place, not surprisingly, in California and New York. California was the first state to enact a celebrity rights law that allowed misappropriation claims to be made up to 70 years after a celebrity’s death.
But if Minnesota is inclined to enact far-reaching rights, it might want to look closer to home.
Indiana has created one of the most protective personality rights regimes not only in the nation but the world. Its statute provides for a 100-year posthumous right and the explicit protection of “a personality’s name, voice, signature, photograph, image, likeness, distinctive appearance, gestures, or mannerisms.”
If such extensive protections follow in Minnesota, The Purple One’s publicity rights legacy—fitting for a performer who fiercely protected both his privacy and music—will be a weighty one.
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