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