Let’s Go Crazy, Just Not This Way

Micahmedia at en.wikipedia [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons[Photo: Micahmedia at en.wikipedia [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia Commons]

Minnesota’s proposed new publicity rights law

Minnesota is poised to enact a sweeping new publicity right into law. Publicity rights legislation has been needed in Minnesota for a long time, but this isn’t the way to do it.

Background

Publicity rights are a matter of state law, growing out of the common law right of privacy.1

Although initially springing from the common law cause of action for invasion of privacy, misappropriation of personality (a person’s name or likeness) developed along a different path. The other causes of action – intrusion upon seclusion, false light, and publication of private facts – continue to be concerned with the indignity, the emotional suffering, that an invasion of privacy causes. Misappropriation of personality has drifted away from that focus. The modern trend is to treat publicity rights (i.e., the exclusive right exploit one’s own name, likeness, voice, etc. commercially) as a kind of intellectual property. The concern now is with the unfair use of another person’s identity to make money, not so much with the indignity suffered when one’s name is used for base commercial purposes. This has been good news for celebrities. It is not very often that a modern-day celebrity is in a position to contend that being associated with mercantilism is embarrassing or repulsive to him/her.

Today, most states recognize, either by court decision or statute, a right to recovery for unauthorized use of a person’s name, likeness, voice, etc. In Minnesota it was established by court decision.2 The question that remains unanswered, in Minnesota and several other states, is just how many of the attributes of a property right it will take on.

The question whether the right continues to exist after a person’s death forces the issue. If the cause of action is a personal one, designed to make a person whole for indignities suffered, then it cannot. Dead people feel no pain. (Or at least, there is no known way to prove that they do.) Prompted by the death of Prince, who was indisputably the most commercially successful musical artist the state has ever produced, the Minnesota legislature is set to take action on a proposal to enact a statute that would both clarify and codify existing case law, while at the same time greatly expanding it.

The Minnesota bill

The Senate version of the bill is attracting a good deal of attention. In part, this is because of the retroactive postmortem protection provisions it contains These kinds of provisions aren’t new. They have been enacted in several states now, including Washington (former home to Jimi Hendrix.) Those states, however, have imposed finite term limits, like 50 or 70 years, tending to correspond, roughly, to copyright terms. The Minnesota bill, by contrast, calls for post-mortem publicity rights of potentially infinite duration. This means that sometime in the future (after 2086), assuming Prince’s heirs haven’t abandoned the right by then, a tribute band could freely exploit Prince’s music so long as it didn’t mention him by name. Instead of marketing their albums or performances under the banner, “The Knock-Off’s play Prince’s greatest songs,” they would have to say something like, “The Knock-Off’s play the greatest songs of some dude we can’t name.”

The “fair use” provision in the Senate version is the more worrisome part, though. As written, it provides an exception from liability for when a person’s name, likeness, photograph, etc. is used for “a news, public affairs or sports broadcast or account.” This leaves out entire categories of reverential uses, like editorials and opinion pieces, not to mention fan sites — regardless of how respectful they are of copyright and trademark rights.

The bill does say that the mere fact that a website has paid advertising on it isn’t enough to establish commercial use. Instead, it is left to the courts to decide, on a case-by-case basis, whether the name or likeness appearing on the website is “connected” with a website’s sponsorship or paid advertising. Great. So what will a court do about personal blogs and websites with Google AdSense on them? Since AdSense correlates revenues to the number of visits to a site, all of the content on these sites is “connected” with paid advertising. If the number of visits to a blog site increases after a guest blogger posts an elegy for a beloved artist (resulting in increased revenue of, say, $0.02), couldn’t a court say the mention of the artist’s name was “connected” to advertising revenues, thereby making the elegy a “commercial” use?

(By the way, why are news and sports broadcasts given special dispensation? What about comedy, online book club discussions, movie reviews, and so on? It seems unlikely that this distinction could withstand First Amendment scrutiny.)

And then there is the clause providing that not only can a court order the impoundment and destruction of infringing goods, but the State can use its police power to seize “all instrumentalities used in connection with the unauthorized use” for “forfeiture to the state.” So not only can someone get a court to issue an order for the destruction of all the T-shirts with the word “Prince” on them that you’ve been selling, but now the police will have the authority to come into your house and take away your computer and modem. Not for the benefit of an aggrieved person or his heirs, mind you, but simply to add to the State’s collection of the many other assets it is already confiscating from its citizens under other laws.

Yes, it is disgusting to see people who never had anything respectful to say about Prince while he was alive trying to cash in on his popularity now that he is dead. And yes, codification and clarification of the law of misappropriation of personality to specifically address the question of postmortem rights is needed in Minnesota. But we also need First Amendment freedoms. Without them, Prince’s musical genius would not have been able to flourish in the first place.

Believe it or not, we can have both. It will just take a little more thinking, that’s all.

 

  1. Nizer, The Right of Privacy – A Half Century’s Developments 39 MICH. L. REV. 526, 535-36 (1941).
  2. See Lake v. Wal-Mart Stores, Inc., 582 N.W.2d 231 (Minn. 1998).