Elvis Presley acheived an astounding artistic record:

• Solo artist with the most No. 1 hits.
• Holds the record for the most top 40 hits at 114.
• Fifty-one top 40 albums on the Billboard Top 200 chart.
• Over 1.5 billion records sold worldwide.
• Over 150 albums and singles certified as gold, platinum or multiplatinum.
• Three Grammy awards and a lifetime achievement Grammy.
• Inducted into five halls of fame: Rock ‘n’ Roll, Country, Gospel, Rockabilly and R&B.
• One of Hollywood’s highest paid stars and top box office draws with 31 feature films and two feature documentaries.¹

Elvis Presley (1935-1977)

‘Money Honey’

Elvis died suddenly at the age of 42 on Aug. 16, 1977, at his Graceland home. Pandemonium ensued as thousands of grieving fans descended on Memphis. National Guard troops soon arrived. Elvis’s distraught father and executor, Vernon Presley, kept the services of Elvis’s longtime manager, Col. Tom Parker. Two days after Elvis’s death, Parker, through Boxcar Inc., the Tennessee corporation he managed holding the right, granted Factors Etc. Inc. exclusive use of Elvis’s “name, likeness and image” or “right of publicity” for $150,000 for 18 months under a renewable contract.² Two months later, the first litigation erupted.

Factors sought a restraining order in the U.S. District Court for the Southern District of New York against two companies selling posters of Elvis’s image.³ The defense contended that upon death the property right ended, and usage entered the public domain. In response, Factors cited a New York district court precedent in which the widows of comedians Laurel and Hardy inherited the right.⁴

The defense countered with a California Rudolph Valentino case, yet the silent era star’s heirs lost because their assertion of the right was only a ploy to bring a defamation suit to block publication of a biography protected by the First Amendment. In another California case, horror film icon Bela Lugosi’s descendants also lost on other grounds, but the right was recognized if exploited in life. And gangster Al Capone’s family sued in an Illinois U.S. district court over a television series but lost since the right was not exercised in life.⁵ Concluding that the right was commercialized in life by Elvis, and the posters were not newsworthy and hence without First Amendment protection, the court granted the order. It found that immediate injunctive relief was required to preserve the value of Elvis’s likeness during the “rush to capitalize on the Presley image in this postmortem period.” ⁶ An appeal was lodged with the 2nd Circuit Court of Appeals.

Judge Harry W. Wellford

During pendency of the appeal, and still within the year of Elvis’s death, suit was filed in Memphis in the U.S. District Court for the Western District of Tennessee. A plaintiff nonprofit, Memphis Development Foundation, advertised to raise funds to erect a $200,000 bronze statue of Elvis in Memphis. Those who contributed $25 or more received an eight-inch pewter replica of the statue. However, it alleged that Factors was interfering with that campaign. The nonprofit argued that the right of publicity was personal to Elvis and expired with him. The defendant replied that the right descended, citing the recent New York decision, and countersued for an injunction.⁷ Both sides agreed that swift resolution was needed because of the “fleeting nature of the market.” ⁸

Judge Harry W. Wellford observed that the Al Capone and Jesse James cases cited by the nonprofit were absent lifetime commercialization, whereas Elvis had exercised and assigned his right before death. Although the state’s jurisprudence was silent on the issue, the Tennessee Supreme Court recognized other intangible property rights like commercial goodwill and tradenames. Therefore, Wellford held that Factors was entitled to an injunction.⁹ An appeal was filed with the 6th Circuit.

While the 6th Circuit appeal was pending, the 2nd Circuit rendered its decision. It said the state of New York offers statutory protection for the living’s name and image, and death should not extinguish it. Otherwise, it would bestow a windfall on the poster companies and render the benefits to Elvis’s heirs worthless. It also affirmed there was no First Amendment protection for the posters.¹⁰

‘Return to Sender’

In 1980, the 6th Circuit, in an opinion by Judge Gilbert S. Merritt Jr., reversed Judge Wellford. Merritt asked, “Who is the heir of fame?”¹¹

Since Tennessee had not addressed the issue, he turned to policy considerations as a case of first impression. So, he further asked, what are the motives for achieving success? He answered: happiness, the improvement of others, and psychic and financial rewards. In contrast, he said the motive of financial benefits to descendants is weak by comparison. He next cataloged the problems of inheritability: 1) How long would the interest last? 2) When does it conflict with the First Amendment?
3) Would it be applicable to fame obtained while on the public payroll? 4) What about things named after the famous, like Napoleon pastries and subdivisions? ¹²

Judge Merritt observed that other attributes that may have commercial value in life do not descend to heirs, such as titles, offices, reputation, trust and friendship; nor is there a cause of action for defamation after death. Bequeathing a good name to one’s children was enough in his view, and there is no reason for changing the common law by commercialization of this virtue after death. Merritt further reasoned that once life has ceased, memory, name, fame and image should become an asset and opportunity shared by all in a free marketplace.¹³

Considering the 6th Circuit decision, the poster companies hurried back to the New York district court seeking reconsideration of the ruling on appeal favoring inheritability. Nevertheless, the district judge refused, reiterating that Elvis carved out a separate intangible property right surviving death, nor could it be defeated by copywriting the posters.¹⁴

Meanwhile, in New Jersey, a new dispute appeared. Elvis’s estate sought an injunction in the U.S. District Court to halt performances by an Elvis impersonator. The court found that the property interest had been disassociated with Elvis and obtained a separate, concrete form inherited by his heirs. Nor was defendant’s “Big El Show” First Amendment protected parody or criticism, since it only exploited with no creative element of its own. ¹⁵

In 1982, the 2nd Circuit released its decision. Citing the 6th Circuit reversal, the appellate court said the issue is no longer policy but a choice of law. Since Tennessee’s courts had not spoken, it was left with deciding how much deference should be given to the decision of a court of appeals of another circuit on the law of a state within the other circuit. Although not bound by that decision, the 2nd Circuit deferred to it until an announcement of Tennessee law and reversed the trial court and remanded for dismissal.¹⁶

Judge Walter Mansfield dissented, saying the 6th Circuit decision represented a minority viewpoint. Furthermore, he said a circuit court of appeals does not have a unique understanding of the law of the states within its circuit. He thought it more logical to presume that the Tennessee district court judge, Judge Wellford, had more knowledge of Tennessee law. And it is more logical to forecast that Tennessee would follow the majority position that the right descends for the benefit of the important Memphis and Nashville music industries.¹⁷

Judge Gilbert S. Merritt Jr.

On the remand to the district court in Manhattan, the district judge surprisingly announced he had just learned a Tennessee chancery court had recently declared the right descends to heirs (in a non-Elvis case), and the dismissal was stayed until the 2nd Circuit could hear a petition to recall its mandate.¹⁸

When the motion to recall the mandate was heard, the 2nd Circuit said it did not have to determine if the chancery decision settled the matter, for a second Tennessee chancellor in another case (a non-Elvis case) had just decided the right did not descend. The court predicted that these developments should result in Tennessee’s appellate courts deciding the issue once and for all. Consequently, the recall was denied.¹⁹ In dissent once more, Judge Mansfield stressed that the conflicting chancery rulings only demonstrated the wisdom of following the decision of Judge Wellford, who Mansfield reported was now on the 6th Circuit bench.²⁰

Prominent Memphis lawyer Barry Ward won litigation securing Elvis’s name and image.

‘It’s Now or Never’

It was a decade after Elvis’s death, and Judge Wellford’s decision, that a resolution came from the Tennessee Court of Appeals in 1987 in the landmark case of Elvis Presley International Memorial Foundation v. Crowell written by Judge William C. Koch Jr. (later of the Tennessee Supreme Court).²¹

In 1980, Elvis fans organized to raise funds for a trauma center to be named for Elvis. They called themselves the “Elvis Presley International Memorial Foundation.” But Tennessee Secretary of State Gentry Crowell ruled that the group could not use the name. However, Crowell reversed position in 1981 and granted the application (probably persuaded by Merritt’s 6th Circuit decision).²²

Then in 1985, the Elvis estate and Elvis Presley Enterprises Inc. incorporated the “Elvis Presley Memorial Foundation Inc.” with the stated purpose of erecting a fountain in honor of Elvis. The “International Foundation” sued to dissolve the new foundation and enjoin use of an allegedly deceptive name.²³

The estate and Elvis Presley Enterprises’ skillful and resolute lawyer, Barry Ward, saw this as the ideal case to attempt to finally establish descendability of name, image and likeness in Tennessee law and intervened. Chancellor C. Allen High of Davidson County was convinced and held the right descendable.²⁴

For the Court of Appeals, Judge Koch commenced the opinion by observing that “Elvis Presley’s career is without parallel in entertainment history” and recounted his achievements.²⁵ Koch further said that Elvis capitalized on his name and likeness during life and the demand for Elvis merchandise had not lessened since his passing. Tennessee common law, he said, continues to evolve to serve society’s needs. He noted that the 6th Circuit’s position is in the minority and the 2nd Circuit disagrees with it. And, as Judge Wellford explained a decade before, the Tennessee Supreme Court recognized other intangible property rights such as tradenames and goodwill. ²⁶

Judge Koch explained that in life the right has financial value and is subject to contract and assignment. And, even though the 6th Circuit believes it wrong, it serves numerous policies: 1) the right of testamentary distribution; 2) the principle that one may not reap where another has sown; 3) the celebrity expects it is an asset for the benefit of heirs; 4) if the name and likeness enters the public domain at death, it will affect contract value in life; and 5) descendibility is consistent with the policy against unfair competition through deceptively similar corporate names. Because Elvis clearly exercised the right, the court needed not to decide if it must be exercised in life to survive death.²⁷

Judge William C. Koch Jr.

‘Don’t Step on My Blue Suede Shoes’

Ward later explained that before Judge Koch’s decision, only a few “mom and pop” operations sought licensing of Elvis products. Other businesses exploited Elvis freely, sometimes tastelessly, on a wide scale to the detriment of the estate.²⁸ Due to the decision, Ward, from his Memphis office, would direct aggressive litigation across America and the globe to protect Elvis’s name, likeness, image and trademark, the legal underpinning of a financial empire.²⁹ In 2024, Tennessee’s legislature adopted the “Ensuring Likeness Voice and Image Security (ELVIS) Act” providing criminal penalties and civil liability for unauthorized use of Tennessee artists’ names, voices, likenesses and images through artificial intelligence. |||

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RUSSELL FOWLER is director of litigation and advocacy at Legal Aid of East Tennessee (LAET), and since 1999 he has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has written many publications on law and legal history, and is a regular columnist for the Journal. He received the TBA’s Justice Joseph W. Henry Award for Outstanding Legal Writing for 2023.

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NOTES
1. See Graceland: The Home of Elvis Presley, www.graceland.com/quick-facts.
2. Memphis Development Foundation v. Factors Etc. Inc., 441 F. Supp. 1323, 1324-25 (W.D. Tenn. 1977).
3. Factors Etc. Inc. v. Creative Card Co., 444 F. Supp. 279 (S.D.N.Y. 1977); Factors Etc. Inc. v. Pro Arts Inc., 444 F. Supp. 288 (S.D.N.Y. 1977).
4. Factors Etc. Inc. v. Creative Card Co., 444 F. Supp. 279, 284 (S.D.N.Y. 1977).
5. Id. at 284-85.
6. Id. at 286.
7. Memphis Development Foundation v. Factors Etc. Inc., 441 F. Supp. 1323, 1324-25 (W.D. Tenn. 1977).
8. Id. at 1325.
9. Id. at 1129-31.
10. Factors Etc. Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978).
11. Memphis Development Foundation v. Factors Etc. Inc., 616 F.2d 956, 957 (6th Cir. 1980).
12. Id. at, 958-59.
13. Id. at 960-61.
14. Factors Etc. Inc. v. Pro Arts Inc., 496 F. Supp. 1090 (S.D.N.Y. 1980).
15. Estate of Elvis Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981).
16. Factors Etc. Inc. v. Pro Arts Inc., 652 F.2d 278 (2d Cir. 1981).
17. Id. at 284-90.
18. Factors Etc. Inc. v. Pro Arts Inc., 541 F. Supp. 231 (S.D.N.Y. 1982).
19. Factors Etc. Inc. v. Pro Arts Inc., 701 F.2d 11 (2nd Cir. 1983).
20. Id. at 13.
21. State ex. rel. Elvis Presley International Memorial Foundation v. Crowell, 733 S.W.2d 89 (Tenn. Ct. App. 1987).
22. See id. at 91-92.
23. Id. at 91.
24. See id. at 91-92.
25. Id. at 92.
26. Id. at 96-101.
27. Id. at 96-99.
28. Interview with Barry Ward, Attorney at Law, April 4, 2024.
29. See, e.g. Elvis Presley Enterprises Inc. v. Elvisly Yours Inc., 817 F.2d 104 (6th Cir. 1987); Elvis Presley Enterprises Inc. v. Elvisly Yours Inc., 936 F.2d 889 (6th Cir. 1991); Elvis Presley Enterprises Inc. v. Capece, 141 F.3d 188 (9th Cir. 1998); Elvis Presley Enterprises Inc. v. Passport Video, 349 F.3d 622 (9th Cir. 2003); Elvis Presley Enterprises Inc. v. Bud Glass Productions, 4:11-cv-00050RH-WCS (N.D. Fla. 2011).