By Kelsey O’Neal
Prince will remain one of the greatest musicians in American history; he prolifically produced music since 1978 and sold approximately 36 million albums. He was also one of a few musicians who owned his own master recordings. This ownership did not come easily, but resulted from a copyright war he engaged in with Warner Bros in the 1990’s. As a form of protest against the recording company and to gain control of his masters from the recording studio, the artist changed his name to an unpronounceable “Love Symbol” and even appeared on stage with the word “slave” emblazoned on his forehead. His battle with Warner stemmed, mostly, from his desire to release more music than the label was willing to sponsor.
More recently, Prince struggled with how easily consumers could access his music in the digital era. Many recall that he sued a woman for posting a video of her daughter dancing to “Let’s Go Crazy,” one of his iconic pop songs, on YouTube. Prince sent a Digital Millennium Copyright Act (DMCA) takedown notice to YouTube, which led the woman to sue, claiming her upload constituted fair use of the song. Fair use is an affirmative defense against a copyright infringement claim. The litigation reached the Ninth Circuit, where the court wrote a landmark decision stating that copyright holders must consider such fair use when sending takedown notices, the woman’s suit survived a motion to dismiss, and the case culminated in en banc rehearing at the Ninth Circuit. The action also gave the world newspapers excellent fodder to discuss the “dancing baby case.”
Indeed, the lengths to which Prince went to guard his intellectual property were prolific. He limited the use of his music on Rhaposody and Spotify (though it remained accessible on Sirius XM and Pandora because they operate on blanket licenses and do not require direct artist approval.) He even trademarked his name for use on clothing, music, and lyrics. However, he expressed admiration for Jay Z’s music streaming service Tidal because he considered it one of the most artist-friendly ways for consumers to get the music they want. Prince’s struggle was, in the end, in pursuit of more protection for musicians and artists.
However, in 2014, Prince’s war with Warner Bros ended when he finally gained control of his master recordings for all of his more than 30 albums, as well as hundreds of unreleased songs. This speculatively included an album that he recorded with Miles Davis. Thus, at the time of his death on April 21, 2016, Prince controlled extremely valuable intellectual property. (All you have to do is remember Tupac’s (hologram’s) iconic performance at Coachella in 2012 to realize that modern technology has expanded the number and types of intellectual property rights that could be up for grabs.) Furthermore, immediately after his death, nine out of ten of the best selling albums on iTunes belonged to Prince.
The only issue for Prince’s estate now is that there is no clear heir. Prince was divorced twice, and he has no natural children. His parents are deceased, though he does have a sister. At this point, all we know is that his sister and half-siblings are seeking ownership of Prince’s estate, but that the estate will be far less valuable after federal and state “death taxes.”
Yet, we may yet see Prince get the last laugh if his estate’s executors manage his intellectual property as he originally saw fit – in other words, if they effectively manage his estate from the grave according to any instructions he left behind. In the meanwhile, one thing is clear: the world lost a genius artist with Prince. One can only hope that is music will live on. And I, for one, really hope the album he recorded with Miles Davis comes out as soon as possible.
Washington Journal of Law, Technology & Arts 