Tuesday, 10 May 2016

Will Minnesota Keep Prince's "Purple Rain" Coming? Minnesota Rushes to Pass Post-Mortem Right of Publicity

In a recent blog post, I discussed the post-mortem right of publicity in connection with the Michael Jackson and Robin Williams estates.  As has been widely publicized, Prince recently passed away with apparently little to no estate planning.  While he was supposedly a savvy musician and businessman, he was like many—likely unwilling to contemplate that he may die and, thus failed to do any estate planning. 

Interestingly, the State of Minnesota (Prince’s domicile) is a state that does not have a statutory right of publicity.  Ordinarily, the right of publicity protects a person’s right to commercially exploit their likeness, name, or image.  The right of publicity is grounded in a right to protect a person’s privacy and to encourage people to develop valuable personas.  The Minnesota legislature is rushing to pass a statutory post-mortem right of publicity before the end of their legislative session (in two weeks). 

The interesting question is why the legislature is moving so fast.  The stated reason appears to be that this is prompted by Prince’s death, and more generally that a post mortem publicity right needs to be recognized.  The legislature could be moving quickly because they want Prince’s heirs to keep operating in Minnesota.  Related to that issue is the fact that Minnesota is apparently one of the few states in the United States to have a state estate tax. 

From a state taxation perspective, the death of a wealthy individual is fascinating.  The New York Times recently published an article about how one wealthy taxpayer moved his personal and business domicile from New Jersey to Florida.  According to the article, this one billionaire’s move would “put the entire state budget at risk.”  So, what happens when a very wealthy individual dies, particularly a person whose livelihood is based on the creative arts with substantial remaining value (As the Wall Street Journal notes, Prince died young so he didn't outlive his biggest fans who may be willing to pay--and pay for a longer time.)?   Of course, that person’s business interests will likely continue, but the question is who gets to tax it.

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