Earlier this year, Minnesota introduced a bill named after deceased rocker Prince. The law sought to extend the right of publicity beyond the grave. The right of publicity is a legal right which generally protects a person’s name, likeness, and other recognizable aspects of their personality.
The Personal Rights in Names Can Endure Act--a belabored backronym for Prince Act--is not the first of its kind. For instance, California law extends the right of publicity for 70 years after death. However, in its original form, it immediately received extreme criticism and was eventually withdrawn. Its proponents have begun work updating the bill to address concerns and intend to reintroduce it next year. As it is, right of publicity in Minnesota is controlled by a very small body of case law and tangential privacy law.
The Bill Formerly Known as Prince
The Prince Act, as originally written, went a little further in what it would protect than many other laws of its type. It specifically enumerated protection for a person’s name, image, voice, and signature—used in basically any commercial manner. This protects both less and more than the usual laws on the issue—it protects a more specific group of things but at the same time protects an incredibly broad range of uses of those things. It also would have provided protection for 50 years after a person’s death. A successful claim under the statute would have allowed a number of types of damages—including a reward of all attorney’s fees and costs.
So, if there are already so many laws like this around the U.S., what was it about the Prince Act that drew the ire of critics? Much of the criticism was the usual general outrage over expanding property rights in intangible assets. However, it seems only fair to be able to control your own image. That being said, there were several more specific criticisms that likely led to the withdrawal of the bill.
As we’ve already discussed, the protections provided by the law are quite broad. What’s more, while there is a defense for fair use where a use is in connection with a news, public affairs, or sports broadcast or account, critics felt the exceptions needed to be broader. Critics unimpressed with fair use and media criticism exceptions
Due to what was perceived as an overly narrow fair use defense, critics argued that celebrities would use the lawsuits, coupled with the cost of litigation, to chill speech. This is a probably a specious argument. Not only can such behavior be punished with sanctions—including the costs of all attorney’s fees—if the motivation can be proven. What’s more, if this was the goal of a celebrity, there are other causes of action such as defamation that could serve the same nefarious ends.
Above all, critics felt that the law was rushed—hurried through to take advantage of the goodwill towards Prince and his legacy. The overwhelming opinion was that the bill preferred opportunity to completeness—it simply left vague many things that needed clearer definition. This is probably true, the bill itself was about four sentences long.
This is probably enough for a law of this sort, right of publicity is one of the most controversial and complicated areas of U.S. law. With no federal law governing right of publicity, it can change wildly from state to state, with each state needing to figure out for itself how it wants to deal with this complicated issue.
Right of Publicity by State
Currently there are only 22 states that recognize a right of publicity: Alabama, Arizona, California, Florida, Hawaii, Illinois, Indiana, Kentucky, Massachusetts, Nebraska, Nevada, New York, Ohio, Oklahoma, Pennsylvania, Rhode Island, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin. Some consider it an offshoot of privacy law while others treat it as part of unfair competition law. However, the biggest differences from state to state are threefold, and can all be found in the Prince Act.
- Does the right survive death?
- If so, how long does it last after death?
- Can the right be inherited or transferred via contract?
The very first right of publicity law was enacted in New York in 1903. It prevented commercial use of the name, portrait, or picture of any living person without consent. However, the law didn’t extend these rights post-mortem—meaning that as soon as somebody died, anybody could use their face to sell things barring other forms of protection such as trademark. It also didn’t deal with what you could do with the rights—sell them, inherit them, etc.
The law has come a long way since 1903, and these issues are almost always addressed by right of publicity statutes. In fact, among states with right of publicity statutes, New York is now in the minority by failing to extend rights after death.
Tennessee’s right of publicity lasts 10 years after death but has some monkey business that can extend the right nearly indefinitely depending on use. Virginia’s law lasts for 20 years after death. Florida’s lasts for 40 years. Kentucky, Nevada, and Texas all last for 50 years after death. California’s amended law provides 70 years, while Washington gives 75 years. Indiana gives a whopping 100 years after the death and even backdates for personalities that dies before the statute took effect. Oklahoma also gives 100 years but only gives the protection to people who died at most 50 years before the statute was passed.
One of the more complicated aspects of rights of publicity are their transferability. Because of the value of a celebrity’s posthumous rights, a grief-stricken family could potentially be stuck with a substantial tax bill if the rights are treated as fully transferable. This may be offset by commercializing these rights, however not every family may want to see their recently deceased relative’s face on souvenir mugs.
This can be avoided—Robin Williams’ will included specific provisions forbidding the use of his image for a certain period of time—however many celebrities, including Prince who died with no will at all, have estate plans that do not fully prepare for this sort of eventuality. Michael Jackson’s estate is currently embroiled in a dispute with the IRS over just how much MJ’s image was worth.
The problem can also be avoided by limiting the property right in an inherited right of publicity within a statute—something the Prince Act notably does not do.
Publicity Rights Going Forward
Right of publicity has seen many intriguing cases with intriguing players. From Vanna White successfully suing over a commercial with a robot wearing a red dress and blonde wig—portrayed flipping letters on the price is right—to Johnny Carson suing over “Here’s Johnny” portable toilets.
However, all these cases have one thing in common, they’re all controlled by wildly varying state laws. Controlling your image is important, a celebrity is essentially selling themselves. They need to be able to stop people from stealing their product. However, without federal laws standardizing publicity rights, those whose rights are trampled will have to rely on a mishmash of state laws and potentially rushed bills like the Prince Act.
Authored by Jonathan Lurie, LegalMatch Legal Writer and Attorney at Law