Sign O’ the Times: the Right of Publicity Comes to Minnesota
The ability to control the use of one’s name, likeness, voice, and other personal attributes is known as the right of publicity. Unlike trademarks, patents, and copyrights, which are types of intellectual property governed by federal law, the right of publicity is governed by state law. Some states, such as California, New York, and Tennessee, have robust right of publicity laws and bodies of case law interpreting those laws. Other states have no laws on the books at all and right of publicity issues are handled by the courts on a common law basis.
States that have right of publicity laws also differ on whether the right of publicity extends beyond a person’s death – so called “post-mortem rights of publicity.” Of the states that are media and entertainment creation centers, California and Tennessee recognize post-mortem rights, while New York does not.
The recent passing of Prince has placed a spotlight on the State of Minnesota, which does not have a right of publicity law on the books. In fact, apart from an Eighth Circuit decision involving the former wrestler/governor Jesse Ventura, there is scant case law relating to the right of publicity in Minnesota.
Enter State Representative Joe Hoppe and State Senator Bobby Joe Champion, who have recently introduced identical bills to be heard by the Minnesota House Civil Law Committee and Senate Judiciary Committee, respectively. The legislation is named the “Personal Rights in Names Can Endure” (or PRINCE) Act. The legislation codifies the right of publicity in Minnesota law and recognizes that an “individual has a property right in the use of that individual’s name, voice, signature, photograph, and likeness in any medium in any manner.” The law makes it a violation for anyone to use an “individual’s name, voice, signature, photograph, or likeness, in any manner,” without the individual’s consent: (1) on products or merchandise; (2) for advertising or selling goods or services; or (3) for fundraising or soliciting donations. The proposed legislation allows aggrieved individuals to seek an injunction, impoundment and eventual destruction of infringing materials, and recovery of actual damages and attorney fees and costs.
Most importantly, especially for the family members of Prince, the legislation allows for a post-mortem right of publicity for a period of at least 50 years after the death of the individual. The rights could continue after the 50 year period for so long as the rights continue to be exploited for commercial purposes by an executor, administrator, heir, devisee, or assignee.
Also of interest is the inclusion of an explicit recognition that use of an individual’s name, voice, signature, photograph, or likeness in connection with a news, public affairs, or sports broadcast or account constitutes a fair use.
The legislation is proposed to take effect as of August 1, 2016, but expressly indicates that the rights recognized by the PRINCE Act are retroactive.
Stay tuned to The TMCA for updates on the progress of the PRINCE Act as it makes its way through the Minnesota legislature. Until then, we’ll be enjoying our starfish and coffee…