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In our first episode of Purple Reign, we saw that even though Prince was known as a “control freak” when it came to many things, he may have let a few things slip, such as the non-existence of a valid will.

Notwithstanding that incredibly inconvenient post-mortem faux paux, Prince was in fact obsessively compulsive when it came to controlling his intellectual property.   He wanted to be in control.  First, there was the “artist formally known as Prince” symbol he adopted in the late 1990’s in order to get order to leverage a split with then-record label Warner Bros.  He was also a DMCA mad man known for sending frequent “take down notices” for everything from YouTube videos to fan made merchandise featuring his trademarks and rights of publicity.  

Surreptitiously as it may be, Prince (or more to the point, his estate) may find that he has even more control over his intellectual property in death than he ever did in life.  A new law in Minnesota called the PRINCE act plans to do just that.  Less than one month after Prince’s death, Minnesota Rep. Joe Hoppe, introduced the Personal Rights in Names Can Endure (“PRINCE”) Act.  The new act recognizes that “an individual has a property right in the use of that individual’s name, voice, signature, photograph, and likeness in any medium and in any manner.”  

Unlike copyrights and trademarks, the right of publicity is not created by federal law but by the laws of each individual state, so the degree of protection varies significantly from state to state.  Minnesota is currently one of just over 20 states in the U.S. that does not provide any protections for a person’s rights of publicity, either before or after death.  The Prince Act would remedy that absence in Minnesota. 

Many states, particularly those states where entertainment is a major source of tax revenue such as Tennessee, New York, California and Florida, have laws protecting a person’s rights in their name, likeness and sometimes other features of their persona, such as voice and signature.  Length of protection is one of the variants.  Indiana, for example, has a law that protects for 100 years after the person’s death and “reaches back” 50 years prior.  There have been some challenges to the constitutionality of some of these laws, so many believe that a Federal law is needed to address the widely varying laws.

Minnesota’s PRINCE act would allow Prince’s estate to control the aforementioned post-mortem rights of publicity, or all things Prince, for the next 50 years.  It’s important to note that although Prince’s death was the impetus for the law, according to its sponsor, it actually protects the rights of all citizens to their rights of publicity, not just Prince.  This is one very important point that the faulty logic of critics of the act, such as The Volokh Conspiracy and ostensible IP expert David Post, do not factor into their criticism:  the act is fundamentally fair because it protects ALL citizens of Minnesota, not just Prince’s estate.  It is similar in structure to most rights of publicity laws, in that the Minnesota law essentially states that “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][a]n individual has a property right in the use of that individual’s name, voice, signature, photograph, etc.” (emphasis added).  Post complains that the law is “[j]ust what we need – more property rights that will clog up commerce, stifle free expression, [and] make lawyers happy forever.”  Perhaps Post needs to be reminded that property rights, particularly copyright, is, as the Supreme Court described it, “the engine of free expression” and a driving force in the creation of commerce.  See this LOR treatise for more.  The Prince law, and rights of publicity laws like it in other states, will protect commercial exploitation of such rights and make sure that the estate the only entity that can benefit from that exploitation.  There is nothing about the Prince Act that will “stifle” either free expression or commerce, in fact, the opposite is true.

But I digress.  The Prince Act could pass as early as August if anti-IP zealots such as the aforementioned don’t have their way.

Of course, when considering any form of intellectual property as an engine of free expression, there are several limitations and exceptions that must be consider in relation to the right of publicity, most importantly those involving First Amendment and/or “Fair Use” protection in certain circumstances.  The interest of the public in free speech must be weighed against society’s need to encourage the creation of useful arts. It also allows for fair use limited to news, public affairs, and sports broadcasts.  To this end, the PRINCE Act has exceptions, just like other counterparts, for the use of rights of publicity for fair use limited to news, public affairs, and sports broadcasts.  One example of a “newsworthy” use of an image would be using Prince’s image in connection with stories related to his death, such as this one.  Use of a photograph of Prince in connection to a news article about his death would be a permissible fair use, the same image imprinted on a T-shirt to be sold for profit would be commercial and would require a license from the estate.

 LOR will be watching closely to see how the bill continues to develop and will keep you posted with any updates.  Please feel free to contact us if you have questions about these issues.

Read Part 1 of the Prince Reign series here.

Thanks to Morgan Wisted for her writing and assistance with this Prince series.  Morgan is a summer intern at Shrum & Associates and has her own blog at www.silkenraven.com.

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[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][fusion_tagline_box backgroundcolor=”” shadow=”no” shadowopacity=”0.7″ border=”1px” bordercolor=”” highlightposition=”top” content_alignment=”left” link=”” linktarget=”_self” modal=”” button_size=”” button_shape=”” button_type=”” buttoncolor=”” button=”” title=”Purple Reign: Lessons Learned from Prince” description=”Part I: Introduction & Estates” margin_top=”” margin_bottom=”” animation_type=”0″ animation_direction=”down” animation_speed=”0.1″ animation_offset=”” class=”” id=””][/fusion_tagline_box][fusion_text]

By Morgan Wisted & Barry Neil Shrum

Just over half way through, and already it has been a tough year of losses in the music industry. Glenn Frey, one of the members of my favorite band of all time, the Eagles, kicked off the year early when he passed in January, shortly after the passing of pop icon, David Bowie.  Then, country fans ached greatly at the loss of the “Okie from Muskogee” when the legendary Merle Hagger died on his 79th birthday.  Later, fans of the Beastie Boys bemoaned the loss of John Berry.   Next came the horrifying news of the senseless murder of American Idol finalist, Christina Grimmie, proving that youth is no more an insulator from the Grimm Reaper than is fame. Finally, comes the loss of Prince, perhaps the greatest pop icon of all, who passed suddenly, thereby reclaiming again his self-proclaimed title of the “artist formerly known as . . . .” So, the collective heart of the industry is indeed heavy as the annual list of dead celebrities for the 59th Grammy Awards show grows larger.

In death, we are all equal in our solitude, but for our estates the relative differences are significant.  When celebrities set off for that great entertainment festival in the sky, they often leave behind enormous estates: for example, founding member of the Eagles, Glenn Fry left behind an estate estimated to be worth over 90 million dollars when he passed.  While magazines like People, Rolling Stone, and Time quickly assembled the expected tell-alls in memory of the greatest “fill in the blank” to ever live, these entertainment-oriented glamor pieces focus primarily on the glitz and glitter that was the celebrity.  They rarely explore what happens to the wealth and intellectual property of these great icons after the caskets close.  This unique series will examine all of that and more.

Prince may very well be the prime example of the myriad of legal issues that often surround a celebrity’s passing.  On April 21, 2016, the mastermind behind platinum selling albums and years of successful tours, left this world for the afterworld:  a world he so fondly talks about in his hit Let’s Go Crazy.  Although one can assume that Prince has punched his ticket to “a higher floor” and is currently living in that “world of never ending happiness where he can always see the sun, day or night,” here on the ground floor, his family and estate is shrouded in mystery and darkness that result from an unplanned estate.  As the Prince song explains, “…in this life, things are much harder than in the afterworld.  In this life, you’re on your own.”  Well, that last part may not be entirely true:  there were 700 people who claimed to be related to Prince, so they are not “on their own.”  As it is with many celebrities, Prince’s death opened a Pandora’s box of legal issues that will be sorted out for months and even years to come.

Now, the question that everyone seems to be asking in regard to Prince is, where is the will?  Many, including award-winning filmmaker Ian Halperin, have described Prince as a shrewd businessman who would have most certainly been prepared for his eventual demise.  Others, namely his sister, Tyka Nelson, has filed documentation in probate court declaring that he died intestate, i.e., without a will.

In the U.S., each individual state has its own laws regarding what happens to someone’s estate when someone dies without a will.  Since Prince lived in Minnesota, it will be that state’s statute that determines what happens if Tyka Nelson’s claims turn out to be true.  According to Minnesota law, when a person dies intestate, the estate property is distributed according to the so-called “intestate succession laws,” which is basically a flow chart of descendants. The Minnesota’s Heir Flowchart is available here.  As you can see from the chart, since Prince’s parents and only legitimate son, Ahmir Gregory Nelson, are deceased and he has no confirmed children (at least not yet), the first line of descent is his siblings, meaning that Tyka Nelson and his other five half siblings, John Nelson, Norrine Nelson, Sharon Nelson, Alfred Jackson and Omar Baker, stand to benefit the most from the non-existence of a will.

So it’s best not to be too hasty.  The judge in the probate case anticipated that paternity might be an issue, so he ordered DNA testing of Prince’s blood and opened a period of time to allow such children to come forward and stake a claim.   Several have, of course.  There’s Carlin Q. Williams, who claims that he is Prince’s biological son and the “sole heir” under Minnesota statute.  Marsha Henson, Williams’ mother, swore in a statement that she had unprotected sex with Prince in Kansas City, Missouri, in July 1976, after which she conceived Williams.  Another as of yet undisclosed man in his 30’s claims, through Heir Hunters International, that his mother has several sexual encounters with the pop legend in “the 80’s.”  As indicated earlier, over 700 people ultimately came forward claiming to be in Prince’s blood line, including cousins, half-siblings, children, etc.

This is, perhaps, the most damning result of dying intestate, other than of course the actual death itself.  Good estate planning could have avoided this chaotic Minnesota “gold rush” by designating the intended beneficiaries.  Just as important, if not more, than that, however, is the avoidance of estate taxes.

So, for the first installment of this Law on the Row series entitled Purple Reign: Lessons Learned from Prince, let’s review some some good reasons that a celebrity needs quality estate planning.  When someone such as a celebrity, who has acquired a great deal of wealth and assets, passes away, or in fact anytime a great deal of money is involved, you can expect to see a throng of people seeking their alleged share of it.  As we now see, Prince is no different.  With an estimated worth of $300 million, it will not be an easy quagmire for Prince’s family to navigate, and it be littered with numerous pitfalls and challenges as they traverse it. To date, the journey to peace for the Prince Estate has been littered with lost wills, quickly formed publicity rights acts, a vault of unreleased Prince songs, and the aforementioned 700 people claiming to be Prince’s half sibling! So, at least for now, the issue of “where Prince’s fortune will go” is still a mystery.  That leads us to some of our first lessons from the Purple Reign:

  1.  Settling estate issues without a will is very expensive and time consuming; best to have the issues sorted out before tragedy strikes;
  2. Planning ahead allows a celebrity to structure certain trusts and other legal vehicles designed to reduce and avoid enormous estate taxes; it is estimated that out of the $300 million dollar estate, Prince’s heirs, whoever they may be, will pay upwards to 50% to various governmental agencies, and then even more to court-appointed administrators.
  3. Proper estate planning also reduces the problems we see in the Prince fiasco.  If there were a written will, there’d be no doubt to whom Prince wanted his estate to descend.  As it is, the fight will continue and the legal bills will mount.
  4. Important descendants may not get anything.  If the celebrity marries a second or even a third spouse, will there be anything available for prior spouses and/or children?  Many intestate laws give everything to the current spouse, leaving prior children and spouses out of the loop, a end result that may be intended by the celebrity.

Just as important, if not more so, when you are dealing with a celebrity, is who has control of the the intellectual properties involved, the copyrights, trademarks, any patents, and of course, the rights of publicity.  When no will is involved, these properties are treated just the same as the money and pass according to the state’s intestate procedure.

So, in Part 2 of the series, will explore the issues surrounding Prince’s copyrights, including the fate of those hundreds of songs and sound recordings waiting to be released to the public.  Who owns those recordings discovered in Prince’s vault?  Can the family release them?  Who owns Prince’s publishing.  Can the family terminate the transfer of any of those rights?

Finally, Part 3 discusses the implications of Prince’s post-mortem rights of publicity.  For anyone familiar with this topic, the hastily formed PRINCE act could very well suffer the same fate the one Washington state assembled on behalf of Jimi Hendrix’ estate, which was ultimately upheld in the 9th Circuit, but only after a 13-year, hard fought legal battle.  Although these issues are changing and growing daily, we are thrilled to have you follow along with Law on the Row as we begin to wade through the river of issues created by at the end of the Purple Reign, and explore the ever changing laws surrounding the fate of all things Prince.

[/fusion_text][fusion_text]morganwisted1Morgan Wisted is an intern at Shrum & Associates and has her own blog at www.silkenraven.com.[/fusion_text][/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]