PRINCE: MISSING YOUR IMAGE, RIGHT?

10th May 2016 By Keith Laker

Barely a fortnight has elapsed since the passing of Prince and already details are emerging regarding what could be one of the biggest examples of failing to plan ahead for the exploitation of image rights following the death of a celebrity.

Prince Rogers Nelson left no will, which hugely increases the likelihood for dissent and opportunism amongst those that think they may have some claim against his estate.  Reports suggest his estate is currently worth $300 million but the real value of Prince’s legacy may be those fees yet to be earned from future exploitation of his image.  Prince’s personality checks all the boxes in terms of supremely exploitable image rights: he was still hugely popular at the time of his death, his audience is global, his style was quirky, unique and an integral part of his musical performance, and for a while he wished to be identified only by the glyph known as love symbol #2. Sadly, Prince now possesses that other criteria likely to add mystique: he is dead, and therefore unlikely to produce any new works.

‘Unlikely’ of course is very different to ‘never’ and herein lies the missed opportunity.  We live at a point in history where technology is just beginning to offer the prospect of our virtual selves outliving our physical selves.  Musicians such as Tupac Shakur and Michael Jackson have already ‘performed’ at concerts after their death, courtesy of CGI and 3-D projection.

The posthumous survival of personality is no minor matter.  The late Michael Jackson has allegedly earned more than $1 billion since his death in 2009.    Not all of this is from album sales, including as it does revenue from the Cirque du Soleil show ‘Michael Jackson One,’ film revenue from the documentary movie ‘This is It’ and even royalties from various Madame Tussauds’ exhibitions (Forbes).

What is true for Michael Jackson will surely be true for Prince.   The lack of a will in respect of Prince’s affairs will complicate matters, but even if a will existed, it could be extremely difficult to protect the essence of his personality to preserve this for the future benefit of the estate beneficiaries.

Robin Williams attempted to control the use and value of his image posthumously by restricting the use of his image for 25 years and placing those rights in a charitable trust. Opinion is varied as to how effective that will be.

All of these celebrities could have benefitted by registering themselves as a Registered Personality using the The Image Rights (Bailiwick of Guernsey) Ordinance, 2012.   This ground-breaking legislation allows an individual (or body corporate) to register their personality as an item of intellectual property (‘IP’). Having done so, all recognizable characteristics of that personality are automatically protected against unauthorised commercial exploitation by others. Better still, by creating actual IP assets, these can be integrated into effective tax planning structures ahead of death, thus – potentially – taking them out of the estate probate process entirely.  In other words, registered personality can continue without interruption and independent of the celebrity upon which it was based.  Better still, unlike most US rights of publicity, registered personality rights can be renewed indefinitely and are much broader in scope.   Voice, likeness, mannerisms, gestures, sounds, personal data, social network profiles and so forth can all be protected.

This is particularly relevant for Prince as he was domiciled in and died in his home state of Minnesota. Charlie Douglas (WealthManagement.com), citing Rothman’s Roadmap to the Right of Publicity, points out that Minnesota has neither a statute nor case law regarding a post-mortem right of publicity.   Furthermore, the state has no clear statute nor case law that codifies the concept that a right of publicity as an inheritable property right.   In that respect, Prince’s executors find themselves in a similar situation to that of the estate of Marilyn Monroe, who failed to overturn the earlier decision to domicile her in New York. Like Minnesota, New York has no posthumous publicity rights and the estate has faced on-going and extensive legal arguments to attempt to control the use of her image ever since her death.

All of these shortcomings can be overcome by using the Guernsey image rights register. Providing infringement can be evidenced in Guernsey (irrespective of where it occurs), the protection is potentially global in reach.   The law has been written to be compliant with international IP conventions and as such should be enforceable in jurisdictions where reciprocal recognition of relevant legislation exists.   In situations where a money judgement order has already been made, many jurisdictions will automatically ensure this is so under reciprocal agreements. (E.g. UK – Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). California – Uniform Foreign-Country Money Judgments Recognition Act)

To many, the use of a British Crown Dependency in which to register their IP smacks of offshore tax-planning, with all of the negative connotations (often wrongly) associated therewith.  This is to miss the point entirely: registering one’s IP in Guernsey does not mean that one has to hold that property in Guernsey.  Most often those property rights will be owned personally and subject to tax in the jurisdiction in which that person normally pays tax.  However, creating those rights in Guernsey does provide entirely legitimate tax-planning opportunities for those that wish to structure their affairs accordingly.  Notwithstanding that, Registered Image Rights is not a matter of tax planning, but of good law.

So – is it too late for Prince (or even Marilyn Monroe)?  Actually no – registration of personality is possible for up to 100 years after the death of the person concerned.  That would enable Prince’s heirs to register his personality thereby creating a hugely powerful management tool for whoever is going to manage his affairs going forward.  Registered personality can be as granular as necessary, allowing different aspects of the personality to be exploited and protected entirely independently of each other.

Ultimately more and more of us will be faced with the prospect of leaving digital representations of ourselves after our death.  Eterni-me is one of the first companies to offer this.  Whether for commercial reasons or sentimental reasons, these representations of deceased persons need protection.  Registered Personality makes this possible.  As is so often the case, celebrities have a role to play by making this step commonplace.  By doing so they will protect themselves, their families, and their legacy whilst helping to usher in a legal framework worthy of the twenty-first century.

For more information about Registered Personality and Image Rights, visit icondia.com.

© Icondia Ltd 2016