Elvis Presley International Memorial Foundation v. Crowell – Right of Publicity is Descendible

This post was first published on October 12th, 2011.
733 S.W.2d 89 (Tenn., App, 1987)
Elvis Presley was one of the most popular American singers of the 20th century. He was popularly known as “King of Rock and Roll”. Elvis Presley’s career was without parallel in the entertainment industry. From his first hit record in 1954 until his death in 1977, he scaled the heights of fame and success that only a few have attained. He was aware of his likeness and had sought to commercialize it. As early as 1956, Elvis Presley’s name and likeness could be found on bubble gum cards, clothing, jewelry and numerous other items. The sale of his memorabilia has been described as the greatest barrage of merchandise ever aimed at the teenage set and earned millions of dollars. Elvis Presley died in 1977, after which the demand for his memorabilia further increased and even today are bought by people. These memorabilia are sold by Elvis Presley Enterprises Inc. which is a corporation formed by Presley estate.
There have been multiple suits in different jurisdictions of the US regarding the publicity rights of Elvis Presley.
In this case, the plaintiff was a non-profit corporation using the name of Elvis Presley as its corporate name. Plaintiff filed unfair competition action to dissolve defendant corporation, Elvis Presley International Memorial, and prevent its use of Presley name. Presley’s estate had granted Defendant corporation license to use the entertainer’s name and likeness and had not granted the same permission to the Plaintiff Corporation. This case was before the Chancery Court for Davidson County where the Court held that Elvis Presley’s right to control his name and image descended to his estate and estate had the right to control the commercial exploitation of Elvis Presley’s name and image. Aggrieved by the Chancery Court’s decision, the plaintiff appealed asserting that there is no descendible right of publicity in the State of Tennessee and that Elvis Presley’s name and image entered into the public domain after his death.
The main issue involved in the case was: Is the Celebrity’s right to publicity descendible after his/her death?
The Court after discussing various cases on right to publicity held that the Celebrity’s right to publicity was descendible and this right was a species of intangible property.
The reasoning provided by the Court for its decision is as under:
1. This was inconsistent with the Tennessee law which recognized that an individual’s right of testamentary distribution is an essential right. If a celebrity’s right of publicity is treated as an intangible property right in life, it is no less a property right at death.
2. This recognizes one of the basic principles of Anglo-American jurisprudence that “one may not reap where another has sown nor gather where another has strewn.”
3. Recognizing that, the right of publicity is descendible,  is consistent with a celebrity’s expectation that he is creating a valuable capital asset that will benefit his heirs and assignees after his death.
4. The right of publicity can be bestowed upon persons who have acquired the right to use a celebrity’s name and likeness. The value of this interest stems from its duration and its exclusivity. If a celebrity’s name and likeness were to enter the public domain at death, the value of any existing contract made while the celebrity was alive would be greatly diminished. Descendible recognizes the value of the contract.
5.Fifth, recognizing that the right of publicity can be descendible will further the public interest in being free from deception with regard to the sponsorship, approval or certification of goods and services.
6. Recognizing that the right of publicity can be descendible is consistent with the policy against unfair competition through the use of deceptively similar corporate names.
The Court relied upon the other cases which arose out of Elvis Presley in New York and other related rights to publicity cases.
Image by Metro-Goldwyn-Mayer, Inc.
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