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Prince bill racing through Legislature despite concerns

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Prince performs during halftime.
Prince performs during halftime at Super Bowl XLI.
Roberto Schmidt | AFP | Getty Images

Prince's name, likeness, voice and even that unpronounceable symbol could be afforded special protection under legislation speeding through the Minnesota Legislature. 

A bill introduced on Monday awaits a House floor vote after winning approval by the only House committee required to review it. A Senate committee will hear it Wednesday. 

Administrators of Prince's estate, concerned about unauthorized sales of T-shirts and other merchandise following the Minnesota superstar's April 21 death, are seeking the emergency update to state law and hope to get it done before lawmakers adjourn May 23.

Some legal experts worry that the hasty consideration could pose problems and are advising lawmakers to go slower on the bill. Those tied to the Prince case, however, say the legislation is needed to prevent strangers from profiting off Prince.

"For better or worse, Prince is the first Minnesota celebrity to reside here, to pass away here and likely go through probate with a right of publicity that has value. At this point we are not aware of any will," Joel Leviton, an attorney for the court-appointed administrator, Bremer Trust, told a House Civil Law Committee hearing Tuesday.

"The lack of clarity as to whether the right of publicity exists after death will further complicate an already difficult probate process, perhaps delaying the proper inheritance for heirs," he said.

According to Leviton, 17 states have similar laws to extend the control of publicity rights for decades or even in perpetuity. The Minnesota bill sets a minimum of 50 years and could extend to a full century. It would apply to anyone, not just celebrities, but it mainly would come into play for those who were famous.

As the initial committee hearing showed, there's still some uncertainty how it would apply in practice.

Legislators asked about tributes in the days after Prince's death, including a GM newspaper ad with a little red Corvette and a message that Prince's life passed too fast.

"I think the difference would be, is they did that one time in memoriam. And I thought it was very tastefully done," said state Rep. Joe Hoppe, R-Chaska, the bill's author as well as Prince's Minnesota House district representative.

"The difference would be if they started selling T-shirts at every GM dealership in the country. I think that's the kind of thing we are after here," he added. "Then they would have to talk to the estate and make sure that was licensed and I'm sure they would do that."

The bill has an exemption for news, sports and other public affairs uses. But Mark Anfinson of the Minnesota Newspaper Association said he worries about the law impinging on First Amendment rights and could result in lawsuits.

"It creates ultimately, if you are not very careful with the execution as opposed to the good idea, it creates a pretty substantial weapon," Anfinson said.

A lobbyist for the Motion Picture Association of America said the group is comfortable with the bill.

What constitutes a likeness is also open to debate.

"What about that little ying-yang glyph? Does he own that? Or did he own that at the time?" asked Rep. John Lesch, DFL-St. Paul. "If someone wanted to put that on a T-shirt does that qualify as name or likeness?"

Probably so, Leviton said. 

Of course, Prince's fame revolved around his music. 

Copyright law already protects music from misuse. That's a vital distinction, said William McGeveran, a University of Minnesota law professor.

"You give copyright to brilliant music in order to encourage people to make brilliant music. And Prince's music is under copyright and will be under protected for a long time," he said. "But rights of publicity aren't necessary to encourage people to become famous. That just happens along the way."

McGeveran is urging lawmakers to take more time considering the ramifications. 

So is Sharon Sandeen, a Mitchell Hamline School of Law professor who specializes in intellectual property. She worked for the California legislature when it passed a similar law and says these laws have vast implications that need careful examination.

"We have to be clear why we're doing this," Sandeen said. "If it's to prevent people from misusing an honored person's image and reputation so forth and so on for a reasonable period of time after their death, I'm all for that. If it's to give money to the heirs, multiple generations, I'm wondering why we'd do that."