What Happens Now that Prince's Heirs Are Determined?
More than a year after Prince's death, the court certified Prince's heirs as his sister and five, half siblings. Under Minnesota law, half siblings are treated equally with full siblings for inheritance purposes.
The first action of the heirs seems to be challenging deals made by the trustee managing the estate for the past year. News reports state all six heirs agreed in 2016 that the estate administrator was rushing to sign deals for Prince's "vault" of songs and masters when their didn't seem to be a reason to push a deal through. A deal was made with UMG in January 2017 that was worth $31 million. Now there's a discrepancy between what rights UMG actually acquired under the deal signed as opposed to rights currently claimed by Warner Bros in the catalog.
In July 2017, the court voided the deal with UMG and now $31 million should be returned to UMG. Hopefully that money is still held in trust. But what about any commissions the trustees may have earned?
Can Prince's Heirs Block A Stage Production About Prince?
Is it a musical or a cover band? That's the first legal question I think the heirs need to ask regarding the "A Celebration of Prince Purple Rain" tour that launches in August in the UK. An article from the BBC says the heirs are exploring legal options in regards to the tour.
Do tribute bands trigger "grand rights"?
Under U.S. law and U.K. law, theatrical grand rights require a public performance license to use music in stage/theatrical production. Those rights are fully negotiable and can be withheld by the copyright owner. These are different rights from the small rights that would be secured in order to present a concert. Small rights are much harder to deny so long as the necessary public performance licenses are secured. In the U.S., the small rights are licensed from ASCAP, BMI, and SESAC. In the U.K., PRS for Music is the public performance licensing agent.
If the tour is actually a "musical," then the tour could be shut down if the proper grand rights licenses are not secured from the music publisher. A concert starts to look more like a musical or theatrical stage production when the songs are used as part of the arc of a story line. If the songs are used for dramatic purposes to carry the story forward, grand rights are triggered.
Do tribute bands infringe trademark rights or right of publicity?
What are the options if this is a "tribute band"? I went to see a Journey tribute band earlier this summer and rocked out to the great hits. I had no illusion or confusion that I was going to see the real members of Journey. The name of the cover band didn't even mention Journey. There was a small tag line in the advertising materials saying the group was a tribute band.
A small tag line is very different from how the Prince "tribute band" is advertising their shows. The purple website, the dove, and the words "purple rain" on the website could all be used to confuse a consumer that somehow this is an authorized tour. This case might come down to less of an issue of copyright infringement, but more of an issue of trademark infringement and unfair competition. There's also a question of infringing on Prince's right of publicity. In accordance with Minnesota state law, the right of publicity will survive after death. In the U.S., all of the factors mentioned could potentially weigh in favor of Prince's estate.
I'm not an expert on U.K. law regarding trademarks and unfair competition so I asked my colleague Claire Freeman with Dummett Copp to share her thoughts on the law in the U.K.
“We don’t have personality rights or unfair competition laws in the U.K. Prince’s estate will need to rely on the U.K. laws of passing off and/or trade mark infringement. For an action under passing off to succeed, the estate must show that fans are mistakenly under the impression that the production has been endorsed by Prince’s estate. Their chances of success will depend on the court’s assessment of the facts of the case and in particular on the way in which Prince’s name is being used."
Claire went on to say, "In June of this year, Prince’s record company, NPG Records Inc, filed both a U.K. and European trade mark application for the mark PURPLE RAIN presumably in order to try and help them win this legal battle.”
Here's a link to some other interesting tribute band litigation.