The Right of Publicity in Light of The Purple One’s Passing

By Daphne Bugelli and Dani Elliott
Photo Credit: SynergyByDesign

Whether you are a loyal fan of Prince or a casual listener, it is clear that Prince’s iconic music and style reached and impacted listeners across the globe. Even if you were never a die-hard fan, you probably know the words to more than a few of his songs. He was a game-changer for music as a whole. An artist that permeated the surface of our ears and carved a deep mold in our musical consciousness.

Prince has been recognized as many things, one of them being an artist in control of his art from point of creation to completion. With his passing at the front of many people’s minds and hearts, particularly musicians, there are sure to be many musical tributes uploaded by way of YouTube, SoundCloud, and other social media outlets. Prince was adamant about not letting his music be played online without his consent, which proved difficult to come by. As recently as 2014, he filed a lawsuit against 22 members of Facebook and Google to the tune of $1 million dollars each, alleging copyright infringement. Then in 2015, Prince removed his music from all streaming services with the exception of Tidal.

Prince’s passing now brings to mind questions regarding the use of his likeness and music. Many fans and businesses will likely try to capitalize on the media attention surrounding his death to create tributes or fan merchandise. But before you decide to open up a Prince Pastry Shop with cute purple paisley shaped cookies or create purple umbrellas with the “Love Symbol” on them, you should consider the laws designed to protect celebrities from other people profiting off their fame, namely right of publicity.

At the Arts & Business Council, our Volunteer Lawyers and Professionals for the Arts program (“VLPA”) was recently contacted by a newly formed organization that wanted to name their organization after a recently deceased celebrity. After the organization’s failed attempts to get in touch with the celebrity’s estate to request permission to use the name, VLPA advised them to proactively protect the organization with this rule of thumb: don’t use a celebrity’s name without authorization from the estate. In Tennessee, a person’s estate can control the commercial use of their name, likeness, or image for the 10 years following the celebrity’s death, and in some cases even longer if the estate continues to use the name. Unauthorized use of the celebrity’s name for commercial purposes could lead to legal action from the estate, even if the celebrity’s name wasn’t being used for personal profit. This law is commonly know as the “Elvis Law” in Tennessee. Throughout the rest of the country, it is called the right of publicity (“ROP”).

The ROP can be referred to as “the right to control the commercial use of one’s identity.” Things usually covered by ROP are a person’s name, image and likeness but laws vary from state to state. ROP extends to every individual but is usually most applicable to celebrities, as they are typically people who possess names and images that would be used to endorse and sell products.

When it comes to intellectual property, copyright, trademark, and ROP tend to have some overlap. The common thread between ROP and trademark is that they both act like a stamp of approval from the celebrity/company in terms of quality assurance. One example of this is a legal battle involving Bette Midler who did not want her voice used in advertising jingles. To get around the prohibition, the advertisers used a soundalike performer instead. Bette Midler filed an ROP claim and won because her likeness (even just her very-recognizable voice without her image) was misrepresented for commercial gain.

So, what does this mean for someone wanting to pay homage to Prince? If you’re planning on recording a cover of a Prince song, be sure to pay the necessary mechanical licensing fee and ensure that the title or description of your version make it clear that it’s a cover. These licenses are provided for by statute, so you’ll be able to get the license to create a cover with payment of the mandatory fee.  This handy document from the US Copyright Office explains more on that.   If you’d like to create and sell Prince tees, mugs, or any other kind of product, familiarize yourself with the right of publicity law in your state – not all states have one, but Tennessee law offers robust protections to the rightsholder.

Minnesota, home of Prince’s Paisley Park estate, has a common law right of publicity that was established in Ventura v. Titan Sports, 65 F.3d 725 (8th Cir. 1995). In that case, Jesse “The Body” Ventura sued Titan Sports for using his likeness in videos they produced. The case was heard in a federal court applying Minnesota state law. The court held that that the Minnesota courts would recognize the right to publicity, which created a common law right in the state.

This means that Prince’s neighbors, as well as fans all over the country, need to be careful about using the artist’s name, image, or likeness on any merchandise they plan to sell as this could lead to a lawsuit from Prince’s estate. Given The Purple One’s litigious past, the safest route would be to steer clear of using Prince’s name, photos or images of Prince, or his trademarked “Love Symbol” on anything that is for sale or is used for commercial gain unless you have the good fortune to obtain permission from his estate. In short, the passing of a celebrity does not mean a big payday for the creators of well-timed fan merchandise.