Minnesota vs. the First Amendment: The state legislature faces free speech policy decisions

January 17, 2017

 

 

 

Ray Allard
Zenith News

This article may be illegal by the time you read it. That’s because the Minnesota Legislature will be revisiting Senate File 3609—the Personal Rights In Names Can Endure, or PRINCE bill, which grants broad property rights to a deceased person’s name, voice, signature, photograph, or likeness.


“The original bill that was introduced was very restrictive,” says Mark Anfinson, a First Amendment attorney who represents the Minnesota Newspaper Association, of which the Zenith is a member.


“[The original bill] gave the estate sweeping powers to prevent the use of Prince’s name or likeness, even if it wasn’t for a commercial or promotional purpose. It would prevent it for any purpose, and that troubled us.”


The PRINCE bill’s provisions don’t apply only to Prince, of course, nor is there any question about unlicensed use of Prince’s music, which is protected by copyright until 2086, and can be renewed after that.


Minnesota’s “right to publicity” law prevents the unauthorized use of a living person’s name or likeness for commercial purposes—but once you’re dead, all bets are off.

 

 “If a person is alive, he generally can control [his image],” says Anfinson. “I can’t use some living person’s name or photograph to promote my products or services...We didn’t oppose that narrow focus just on commercial uses. The problem is the bill as introduced swept well beyond commercial use”—including news reports and other forms of protected speech.


“You’re familiar with ‘What would Wellstone do?’—that famous slogan from [Paul] Wellstone’s Senate campaign days? [After Wellstone’s death in 2002], people put together bumper stickers and t-shirts saying, ‘What would Wellstone do?’”


Although money is exchanged for the bumper stickers and t-shirts, the slogan, sometimes accompanied by an image of Wellstone, is clearly intended as a political statement. “I suspect the estate of Paul Wellstone wouldn’t object, but it’s an example of the mischief that the original bill could’ve caused.” 


And that mischief isn’t even limited to the dead. The PRINCE bill would also amend existing rights enjoyed by the living, offering a chilling degree of control over the use of one’s name and likeness. “I gave the example of a political opponent of...Senator Franken, who wanted to have some t-shirts made during the next election campaign that showed a picture of Al Franken with the symbol for, you know, the red circle with the slash through it.


“Print up these t-shirts with Franken on them and then that symbol over his picture, signaling that I didn’t like Franken. Again, Franken could’ve prohibited me from doing that, even though it was pure political speech, because it would’ve been an unauthorized use of his image.”


When Prince died on April 21, 2016, he left behind no will. In the first few weeks after his death, hundreds of people came forward claiming to be distant relatives, aggrieved creditors, or secret love children.


On May 3, the court in Chanhassen appointed Bremer Trust as special administrator of Prince’s estate, currently estimated to be worth $300 million and counting. Not yet inventoried are a vault of unpublished music, jewelry, musical equipment, more than a dozen vehicles—and the lucrative market for Prince’s name and likeness.


 “I think it’s a fair conclusion by [Bremer’s] attorneys that the estate of Prince has some extremely valuable assets in the form of Prince’s image, his name, and related things,” says Anfinson. “If you put on some kind of promotion, and use Prince’s photograph, or his name on things like that, you are probably going to get more attention to it. So there’s value to that...There’s a legitimate balance point here. The trick is to get to it...when it comes to legislation that tries to draw a line to protected speech.”


Bremer Trust approached the Minnesota Legislature in April and the PRINCE bill was introduced on May 5. “Some people accused [Bremer] of trying to railroad the bill, but I didn’t really go that far. They just didn’t have that much time. There was a very little tiny window of time they had before the legislature adjourned...The bill will come back. It’s going to come back this coming session...They made it pretty clear that they will have the bill reintroduced next January and try to get it enacted.”

 

 

To read about House File 2741, the "revenge porn bill," click here.

 

 

 

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