PRINCE Act clears Minn. House panel, stalls in Senate

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By Mike Mosedale
Dolan Media Newswires

Even in death, Prince still draws a lot of water in this town.

That much became clear at the Capitol this week as House and Senate committee ignored their long-since lapsed deadline for policy legislation and took up the a fast-changing and controversial proposal dubbed the PRINCE Act – an acronym for Personal Rights in Names Can Endure.

Intellectual property attorney Joel Leviton — who is representing the special administrator for Prince’s estate, Bremer Trust — told lawmakers that the measure is necessary because Minnesota, like a majority of states, does not have a descendible right to publicity on the books.

“We would like to have it clarified that this right is part of the estate and not have to litigate that issue so we can administer the estate in a more orderly fashion,” said Leviton, a partner at Stinson Leonard Street LLP.

Leviton said the bill is designed to curtail the unregulated commercial exploitation of Prince’s name, image and likeness. Without knowing whether Prince’s publicity rights survived his death, he added, it will be hard to establish the value of Prince’s estate.

Although the measure sailed through the House Civil Law and Data Practices Committee on a voice vote, it got a much tougher reception the next evening in the Senate Judiciary Committee, where critics urged lawmakers to reject a bill they characterized as sloppily drafted, poorly thought out and likely unconstitutional.

With less than two weeks left in the session, the Senate committee debated well into the evening before finally agreeing to kick the can down the road.

The committee chair, Sen. Ron Latz, DFL-St. Louis Park, said he still hopes that supporters and opponents can work out their differences.

“If the bill comes back the way it looks now, I think you’re going to have a lot of trouble getting it passed,” Latz cautioned. “It is my goal to reconvene this committee on Monday afternoon and I hope that folks will work diligently to come up with [another] proposal.”

As the hearing stretched passed the dinner hour, the chief author of the bill, Sen. Bobby Joe Champion, DFL-Minneapolis, expressed umbrage at the critics, who “are working as obstructionists and not trying to engage us.”

As to the assertion that the provisions might violate free speech rights, Champion responded testily, that’s an issue for the Supreme Court to decide.

Too complex

Some of the sharpest critiques came from William McGeveran, a professor at the University of Minnesota Law School, and Sharon Sandeen, a professor at Mitchell Hamline School of Law.

“This is not a bill that’s appropriate to consider in two weeks’ time,” said McGeveran. “It’s a complicated, detailed, persnickety area. This is not just a simple tweak to Minnesota law.”

In particular, McGeveran was critical of the fair-use protections in the bill, saying that the exemptions are tailored only to protect “old media.”

“I think we have to be much more careful to carve out exceptions for speech,” said McGeveran.

Sandeen urged lawmakers to consider both the broad policy implications of the bill and “the technical difficulties with the language.”

Sandeen, who worked in the California legislature when that state enacted its post-mortem right to publicity law, said it took “many months” to work out the details. Minnesota lawmakers shouldn’t try to tease out the implications in two weeks.

As news of the fast-moving proposal has spread, Mark Anfinson, a Minneapolis attorney and lobbyist for the Minnesota Newspaper Association, said he’s been fielding lots of calls from individuals concerned a that the fair-use protections are far too limited.

“This bill creates a powerful weapon to intimidate and leverage behavior in the speech area far out of proportion to any benefits,” said Anfinson.

Anfinson said a provision of the bill that would award attorney fees to prevailing party is particularly worrisome.

“You know what that does in the real world? It forces little people into prompt settlements,” Anfinson said. “They can’t stand up to claims based on ambiguous statutes. They have to settle.”

More concerns

Other testifiers were more ambivalent in their assessments of the legislation.

Brian Lake, the lobbyist for the Minnesota State Bar Association, said the MSBA hasn’t had enough time to develop a position on the bill. “The odds of having any helpful feedback in the next day or two are nonexistent,” said Lake.

Joel Carlson, a lobbyist for the Minnesota Association of Justice, said trial lawyers “support the concept of what’s being advanced here.” But Carlson also said the MAJ has “concerns” over the immunity provisions, the attorney fee shifts, and “how it is drafted.”

The tone and tenor of the debate at the Senate Judiciary Committee contrasted markedly from the reception the bill got in the House Civil Law and Data Practices Committee just a day earlier. At that hearing, Anfinson, the newspaper lobbyist, was the only testifier to speak in opposition.

Still, several House members worried about the limits on fair-use protections.

One of the lawyers on the panel, Rep. John Lesch, DFL- St. Paul, wanted to know if General Motors would now be exposed to a legal claim from the estate over the full-page newspaper advertisement it ran after Prince’s death. The widely lauded ad depicted a vintage Corvette paired with the words “Baby that was much too fast” — a reference to Prince’s song “Little Red Corvette” — and the dates of musician’s birth and death.

Leviton, the attorney for the trust administering the estate, responded that he wasn’t familiar with the ad but, after Lesch described it more fully, said that it would likely be actionable under the terms of the bill.

Another lawyer-lawmaker on the House panel, Rep. Dave Pinto, DFL-St. Paul, pressed Leviton from a different perspective. If a right of publicity ought to be deemed a transferrable property right, why does the bill limit its duration to 50 years (and, if renewed, another 50 years)?

After all, Pinto noted, if a person inherits a diamond, that doesn’t come with a statutorily mandated expiration date.

Leviton responded that such time limits exist in most but not all of the 17 other states that recognize a post-mortem right to publicity. Such provisions, he said, recognize a practical reality that “there could be a period of time when right of publicity turns into a trademark right.”

The legislation did get a boost when it received an endorsement of a powerful Hollywood trade group, the Motion Picture Association of America. That MPAA’s stamp of approval came after its House author, Rep. Joe Hoppe, R-Chaska, agreed to an MPAA-backed amendment which extended fair-use protections to movies, plays, books and “a single work of art.”

The original version of the bill was more restrictive, limiting such exemptions “to a news, public affairs, or sports broadcast account.”

Familiar pattern

In a telephone interview, Jennifer Rothman, a professor at Loyola Law School in Los Angeles and author of the forthcoming book “A Right is Born: The Right of Publicity, Celebrity and Privacy in a Public World,” said the Minnesota Legislature’s rush to establish a post-mortem right to publicity right follows a pattern that has played out in the 17 other states that have enacted similar laws.

“What usually happens is somebody like Prince dies, the estate comes in and asks for legislation, and no one opposes it,” said Rothman.

She said the fair-use provision contained in the MPAA amendment addressed one of the more glaring flaws in the original bill: the lack of fair-use protections for expressive works such as movies, books and plays.

If the bill passes in current form it could have unintended tax consequences for Prince’s heirs, Rothman said, because the IRS could include the commercial value of the publicity rights in calculating the estate’s tax obligation.

“It’s an uncertain area of tax law — that’s what’s being litigated now with the Michael Jackson estate — but the tax bill could be staggering,” Rothman observed. “Because of that, many of the sophisticated entertainment lawyers tell their clients you have to prevent commercialization in your will so that your heirs won’t be burdened with this tax.”

And if the right to publicity becomes fully transferrable under Minnesota law, it’s not just the heirs of who could feel the impact. If a celebrity goes into bankruptcy, she said, creditors might claim the right to “force the commercialization” of the celebrity’s identity.