Forbes has just released the annual “Top-Earning Dead Celebrities” for 2016. The most notable aspects of this year’s list are the new entries of recently departed personalities, and the amount of the number one earner. Here is a link to Forbes’ coverage: http://www.forbes.com/sites/zackomalleygreenburg/2016/10/12/the-highest-paid-dead-celebrities-of-2016/#5a1f53dd8d2e
Arnold Palmer (#3), Prince (#5) and David Bowie (#11) are the unfortunate new members on the list due to their recent respective deaths in 2016. In Palmer’s case, he had already created a vast business empire so the revenue sources that put him on this particular list were already in place. For Prince, who perhaps is the most surprising entrant on this list due to the especially shocking news of his death, the earnings are due to the surge in music sales that often follow the death of a notable artist. The same could be said of Bowie, but Bowie’s numbers also benefited from the release of a new album that closely coincided with his passing.
The other notable surprise in this year’s list is the amount assigned to the number one entrant, Michael Jackson, at $825 Million. Compare that figure to the number two spot, Charles Schulz, at $48 Million. It is worth noting that Jackson, since his death, has almost always taken the top spot, and while never quite at the $825 Million mark, the drop off from first place to second has often been very steep.
That Minnesota should consider enacting publicity rights legislation is something I stated here shortly after Prince’s untimely passing: http://rightofpublicity.com/prince-knew-the-value-of-his-intellectual-property-42216 Minnesota has responded with draft right of publicity legislation, SF 3609, posted on May 11, 2016: https://www.revisor.mn.gov/bills/text.php?number=SF3609&version=0&session=ls89&session_year=2016&session_number=0
Predictably, critics of the legislation are taking issue with the bill on First Amendment grounds: http://www.law360.com/ip/articles/794846?nl_pk=bb8aeb3e-4ab9-4ba4-a0af-b895a107fd8a&utm_source=newsletter&utm_medium=email&utm_campaign=ip
While the legislation likely would benefit from expanding the list of fair use exemptions, such as for books, overall the legislation is in good shape and appears well-balanced in its reach and application.
As we have seen from the Michael Jackson estate and questions concerning the valuation of his right of publicity, I expect Prince’s estate will go through a similar review by the IRS. It should be noted that Minnesota’s potential adoption of the “Prince law” is not dispositive on whether or not Prince’s estate possess a right of publicity. It should be assumed that it already does. How it should be treated for taxation purposes is another question altogether.
Interesting article in the Wall Street Journal about the coming challenge of valuing the “image rights” of Prince’s estate. Here is a link: Valuing Prince’s Image Rights
There are some interesting points, as well as some common mistakes, threaded into this article which illuminate the complexity of valuing Prince’s image rights. I must refrain from elaborating, as I would be one of a small handful of qualified candidates to perform such valuation. There aren’t many candidates who are qualified for the task.
As the article notes, the valuation could become a “battle of the experts” but there certainly is a way to value Prince’s image rights in a supportable way. Much relies on a truly qualified expert bringing the appropriate perspective to the matter. It won’t come from books or formulas. The valuation must be done by someone who is very well-informed about Prince’s career, beliefs and principles. (As it turns out, that criteria may make me the most qualified potential expert on the matter.)
Reference in the Wall Street Journal article to the Michael Jackson estate’s representatives claiming a valuation of around $2,000 and the IRS countering with $434 Million shows the critical and sensitive nature of the upcoming Prince valuation.
If only Prince was simply still alive. But fellow artists and musicians, take note: if your attorney isn’t talking to you about the right of publicity, find one who is.
Prince knew the value of his intellectual property, and fought battles other artists didn’t or couldn’t. And won, in the case of control over his publishing and catalog. I hope that this awareness extends to Prince’s Right of Publicity. Hopefully, he had advisers in his life who could raise his awareness on this point. He could have been quite the advocate for publicity rights recognition. Maybe it’s time for the Minnesota legislature to put a statute in place in his honor.
Godspeed, Prince. #RIPPrince