RIGHT OF PUBLICITY

Elvis Presley International Memorial Found v. Crowell  733 S.W.2d 89 (Tenn., App, 1987) p. 12
Author: ERL

P, appellee= Tennessee, Memorial Foundation

D, appellant= International Fund (license granted by estate)

Procedural Posture:  On appeal to state appellate court after trial court’s grant of summary judgment for D.    State law concerning right of publicity applies.  Must show proof of fame and commercial appeal of person to whom publicity right is said to belong.

Facts: One corp filed unfair competition action to dissolve other corp, International Memorial, and prevent its use of Presley name.  Presley’s estate had granted D corp license to use the entertainer’s name and likeness, and had not granted same permission to P corp.  During his lifetime, Presley entered into contracts and merchandising deals that bore his endorsement via name and likeness.  Commercial exploitation of Elvis Presley’s name and likeness is still a very profitable enterprise, even after his death.

Claims of Parties: Both litigants are not-for-profit corporations.  P corp alleges unfair competition practices by D corp and seeks to dissolve the corporation and prevent its use of Presley name and likeness.  P is appealing trial court summary judgment for D.   D alleges that right of publicity descends to estate after a celebrity’s death, and estate has the right to control use of celebrity’s name and likeness.  Thus, D is entitled to its use of the Presley name because it has received a license from the estate.

Issues:  Is a celebrity’s right to publicity descendible to the estate after death, according to TN state law?

Holding: Yes, publicity right descends to heirs and assigns of the celebrity.

Rationale:  a) An individual’s right of testamentary distribution is an essential right that survives death.

       b) It is good policy to prevent unjust enrichment from the use of a celebrity’s likeness, even after death.

       c) Celebrities have the expectation that they are creating a valuable asset that will benefit their heirs after their death when they allow the commercial use of their likeness’.

       d) Recognizes the value of the contractual rights already in existence for use of the likeness and name.  This interest stems from the exclusivity of the use of the likeness.

      e) Prevents fraudulent advertising.  It is illegal to falsely claim a living celebrity endorses a product.  This should extend to dead celebrities also.  Also consistent with unfair competition policy regarding deceptively similar names of corporations.

Rule:  A celebrity’s estate maintains the celebrity’s right to publicity after the death of that celebrity.

This case serves as a precedent that enhances the view of the right of publicity as a right separate from the right of privacy and worthy of its own caselaw.

Definitions:

Ex rel- On the relation or information of; A suit ex rel is typically brought by the government upon the application of a private party (called a relator) who is interested in the matter.

            >The state attorney general is given authority to supervise the lawsuit and give support,

SJ – Court found that there were no disputed facts and the court could decide on the undisputed facts of the case in favor of one side.

DISCUSSION

Just because something is very valuable does not make it property.  (sleepy motels, old interstate roads)