Throughout his career, Prince was a champion of artistic freedom. But in a horribly ironic twist, when he died on April 21, 2016, without a will, he hadn’t put in place a legal, financial or creative road map that would allow his estate to follow a direct, clearly delineated vision.
Last summer, I was brought in by the then-special administrator, Bremer Trust, because of my experience in music publishing, when it was looking to do a global deal for Prince’s entire catalog. Prince had signed individual contracts with dozens of sub-publishers around the globe, and there was some clean-up involved; it wasn’t about opening a vault and having to blow off the dust, but it still was complicated because of a web of various arrangements.
When I first looked at the music deals, I was surprised at their complexity. Prince didn’t just control his own rights; he also controlled those of other writers, including members of his band, The Revolution, and Sheila E.
Here’s an example of the challenges that met the estate. As was widely reported, in 2014 Prince withdrew from the American Society of Composers, Authors and Publishers (ASCAP) without joining a new performance rights society. That left his performance rights collection without a home. Adding to the complication, his staff had taken over the administration of his music-publishing catalog — but in foreign territories, deals were about to expire at the time of Prince’s death. When it was discovered that a vault of unreleased material (kept under lock and key in his Minnesota compound) hadn’t been archived or even given a formal valuation — as was the case with the rest of his intellectual property assets — that posed yet another hurdle.
Valuation is crucial. Successful artists such as Prince have various income streams from all sorts of places — music publishers, performance-rights organizations, record labels, name-and-likeness royalties and a host of other sources — and their correct valuation helps determine estate-planning strategy.
Non-lawyers might not realize that there are dozens of potential deal structures, ranging from outright asset sales to short-term administration or distribution agreements, the choice of which should take into account the duration and scope of rights in existing deals, as well as the required income-flow needs. Knowing the correct value of the assets can help guide strategy in choosing the right deal.
As with Michael Jackson’s estate, which faced ongoing tax battles after his untimely death in 2009, the greater the value of the assets, the more important it is to have them assessed, so that estate planners can make appropriate suggestions for structuring such things as post-death tax bills. Deals were set in motion by Bremer Trust months after Prince’s death; their tax implications could impact the decision to sell an asset outright or bet on its long-term value. Retaining ownership may in turn mean seeking an administrator or distributor to operate the assets.
Without a contractual strategy and financial plan in place, legal and financial decisions often end up being made by third parties, and that can have a lasting effect on heirs and linger for years.
When it comes to music catalogs, prices and “multiples” (the factor by which net annual profit is multiplied to determine a purchase price) have continued to fluctuate over time, and these issues also have to be weighed. Market conditions and new economic components — such as the recent evolution of music streaming services — can have an effect on the value of catalogs, because as revenues increase, so do sale prices. It takes research and professional insight into all these matters to determine the best timing of an asset sale.
On the music-publishing front, in Prince’s case the estate chose to have one single global music-licensing partner to administer his assets. While there are pros and cons to choosing a global music partner over an independent company (Prince previously had a host of independent representatives), a global partner helped ensure that the music could be pitched, placed and monetized in a centralized fashion.
More than ever, music monetization is a worldwide game, with administrators and distributors in foreign territories capable of activating market exploitation at the flip of a switch. Global performance rights have become the leading income stream in music publishing, and neighboring rights have grown by leaps and bounds.
Under Bremer Trust, I focused primarily on the music publishing and performance rights associated with Prince’s vast catalog, along with the digital rights landscape. Following the appointment of Comerica Bank & Trust N.A. as the estate’s personal representative, I’m now focusing on all of Prince’s entertainment and intellectual property rights.
As I dive further into helping to preserve and protect Prince’s immense artistic legacy — which was guarded by him so carefully while he was alive, and will continue to influence pop culture for generations to come — it’s a paradox that his creative rights are influenced by the void of legal or financial arrangements. Other artists, icons and emerging stars alike, should consider careful planning, which can make all the difference.
Jason Boyarski is a partner with the law firm Boyarski Fritz LLP in New York.