Elvis Presley Int'l Memorial Foundation v. Elvis Presley Enterprises
Ct of Appeals of TN- 1987
In 1979, two years after EP's death, fans approached county officials to register their NGO, Elvis Presley International Memorial Foundation (International Foundation). The Secretary of State denied their application.
Group was also refused rights by EP's estate.
Then, Secretary of State reversed its original decision and granted the application.
EP's estate and Elvis Presley Enterprises incorporated the Elvis Presley Memorial Foundation (Foundation) in 1985.
Relations with the International Foundation fell apart after the incorporation of the Foundation, and the International Foundation sought court action to dissolve the Foundation.
Elvis Presley's estate intervened on behalf of the defendant corporation (the Foundation), asserting that it gave D the rights to use EP's name and had not given permission to the International Foundation (P).
Trial Court determined that EP's right to control his name and image was descendible.
Ct of Appeals affirmed.
Is the right to publicity a descendible right upon death?
The right to publicity is a descendible right.
Elvis Presley's right of publicity survived his death and remains enforceable by his estate and those holding licenses from the estate.
Right to publicity emerged out of the right to privacy and was originally one of the four pillars of the right to privacy. The right to privacy is not descendible.
Slowly, the right to publicity became recognized as a separate right discernible from the right to privacy.
Nexus between right of publicity and the other three categories is tenuous.
This has created some confusion about whether the right to publicity is descendible.
One Tennessee case (District Court applying TN law) held that it was descendible, then the 6th Cir. reversed based on TN law (that court holds was incorrectly read).
Two NY cases originally ruled that it was descendible, but they were applying NY law. On appeal, they realized they had to apply TN law and were forced to reverse based on the case mentioned above.
A final case applying NJ law held that right was descendible.
Reasoning of 6th Cir. Applying TN law has not been widely followed and has been consistently criticized.
In its broadest sense, property includes all rights that have value.
Our courts have recognized that a person's business, a corporate name, a trade name, and the god will of a business are species of intangible personal property.
Unquestionably, a celebrity's right of publicity has value. It can be possessed, used, assigned, and can be the subject of a contract.
Thus, there is ample basis for this Court to conclude that it is a species of intangible personal property.
While a celebrity is alive, the right of publicity takes on many of the attributes of personal property.
The 6th Cir. opinion is based on incorrect constructions of TN law.
Recognizing that the right of publicity is descendible promotes several important policies:
First, it is consistent with our recognition 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.
Second, it recognizes that there should not be unjust enrichment from another's work.
Third, it is consistent with a celebrity's expectation that he is creating a valuable capital asset that will benefit his heirs and it recognizes the work and financial commitment celebrities make in their careers (Labor theory).
Forth, it recognizes the value of the contract rights of persons who have acquired the right to use a celebrity's name and likeness during the celebrity's life. Those contracts would be valueless once the celebrity died if others were allowed to freely use the name and likeness of the celebrity.
Fifth, it furthers the public's interest in being free from deception and false claims regarding celebrity sponsorship.
Finally, it is consistent with the policy against unfair competition through the use of deceptively similar corporate names.