Feeling Minnesota: Has Prince’s Right of Publicity Disappeared?

MNprinceIn the unlikely event that any West Coast celebrities out there had been considering a move to Minnesota, an article published today on WealthManagement.com will give them pause. It makes the insightful observation that the late artist Prince’s decision to remain domiciled in his home state may have cost his heirs (whoever they turn out to be) the right to control and profit from the use of his name and likeness.

As readers of this blog know, the right of publicity protects an individual’s right to control the commercial exploitation of their identity. Although derived from the common law of privacy, this legal concept has evolved into a species of intellectual property. The ubiquity of digital publishing and social media has sparked a renaissance in the development and enforcement of publicity rights–especially after a celebrity dies. Indeed, some of those who profit the most from the right of publicity are the estates of dead celebrities who cash in on the public’s nostalgia.

The trouble is that it remains a creature of state, not federal, law, so the particulars of this right vary widely across the country. Some states (like California and Indiana) enforce the right strictly, with statutorily defined parameters. Others, like my home state of Michigan, have developed the right through a series of common law judicial decisions, And then there is a sizable minority of states that do not expressly recognize the right at all.

In almost every instance, the state whose law governs is determined by where the rights holder is domiciled. The extent of any posthumous rights are determined by the state in which the decedent was domiciled at the time of death. A few years ago, Marilyn Monroe’s estate lost its ability to police the use of her likeness when a court determined that she died a resident of New York, which does not recognize posthumous publicity rights.

Minnesota, where Prince died and was domiciled, does not have a statutory right of publicity. Its courts do recognize the common law tort for misappropriation of likeness, from whence the right of publicity developed. But they have never had occasion to determine whether, and to what extent, that right extends posthumously.

Once a court determines just who Prince’s heirs are (another question no one has yet answered), you can bet there is going to be a great deal of pressure on the Minnesota courts to extend the right to his estate. After all, there is an awful lot of Prince nostalgia currently underway, and whoever inherits the estate is going to want to cash in on it. If they’re lucky, the court will discover such a right in the common law, much like Michigan has (sort of) done. But that’s an awfully big “if.”

As WealthManagement.com writes,

“It would be sad commentary if Prince, who fought so fiercely for artistic control during his life, ending up losing the right to his own name, likeness and persona on his death.”

If that happens, perhaps a part of Prince’s legacy will be inspiring Congress to finally pass a federal publicity rights law.