The King Is Dead! Long Live The King!: Elvis Sightings, Taking Care of Business, And Rights Of Post-Mortem Publicity

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Never let me go…
I’ll be yours through all the years,
till the end of time.

[Love Me Tender, performed by Elvis Presley]

Elvis sightings have had a long, storied life of their own since the King of Rock-and-Roll’s “death” was reported (or perhaps exaggerated (though neither greatly nor grossly)), in 1977.  Indeed, since 1977, it has been claimed that Mr. Presley had an uncredited appearance in the movie Home Alone in 1990, that Elvis sweetly inspired healing miracles before 1977, and that since 1977 his miracles have included pedestrian healings as well as more impressive feats such resurrection and reincarnation.  Were those sorts of things, or more mundane media mentions, not themselves sufficient post-mortem publicity to keep the King in our thoughts, a New Jersey federal district court, in Estate of Elvis Presley v. Russen, 513 F. Supp. 1339, 1344 and 1355 (D.N.J. 1981), said that “On August 16, 1977, Elvis Presley died,” purportedly, “but his legend and worldwide popularity have survived…” and “Elvis Presley’s right of publicity survived his death and became part of Presley’s estate.”  TCB in a flash, or, for the uninitiated, just a way of taking care of the business of personal musical empire.

While one is not surprised that there have been doubters, disbelievers, and dissenters over the years as to the validity of the cases of Elvis sightings, this post passes over such controversies.  Those are matters of faith for debate between such doubters, disbelievers, and dissenters and the fans, cover bands, and emulators. Those debates will never end, a veritable Tutti Frutti of controversy, whether he or others sing that song.  But what is somewhat surprising is how long and continuing the debate has been on the validity of that Estate of Elvis case citation.  Indeed, over the years Elvis Presley’s right of publicity has been referenced by the United States Supreme Court, nine federal circuit courts, thirty-three different federal district courts, thirteen different state courts, and countless judges on the aforementioned courts.  “Should one’s right of publicity transcend and survive one’s mortality?” is not an uncontroversial legal matter, and there have been arguments on one side (at page 11) or the other of that argument for some time.  This long-running debate has resurfaced for consideration recently.

That is because, on November 30, 2020, New York Governor Andrew Cuomo signed into law a bill amending New York’s Civil Rights Law, Sections 50 and 51, “[t]o create a right of publicity for deceased individuals, including the ability to use technology to create digital replicas, and a registry to publicly post such interests upon thereby giving notice to people who may seek to use an individual’s right of publicity in New York State for advertising purposes, or for the purposes of trade.”  So, a brief survey of right of publicity law seems appropriate.  First, it is appropriate because we just passed on January 8th what would have been (or perhaps was, if he is still alive) the King’s 86th birthday. (In recent years he has reportedly shown up to celebrate the occasion and there was a full schedule again this year and a new 2021 birthday t-shirt as well).  And, second, it seems an appropriate follow up on previous pieces on the right of publicity (here and here), biography, the duration of literary character protections, last year’s celebration of January birthday (in that case, Rabbie Burns), and PSAs on the importance and safety of vaccines.

Let’s start with what the right of publicity is.  As I noted the last time I quoted the Estate of Elvis case in an ILN post:

One of the early US cases recognizing by name “the right of publicity” was in fact a New Jersey federal court case, Estate of Presley v. Russen, 513 F. Supp. 1339  (D.N.J. 1981).  That case defined the right thus:

…The right of publicity is a concept which has evolved from the common law of privacy and its tort “of the appropriation, for the defendant’s benefit or advantages, of the plaintiff’s name or likeness.” The term “right of publicity” has since come to signify the right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name and picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit…

Although the courts in New Jersey have not [before 1981] used the term “right of publicity,” they have recognized and supported an individual’s right to prevent the unauthorized, commercial appropriation of his name or likeness.”

In fact, in so holding, the Russen Court relied on a 1907 case involving Thomas Edison, Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 A. 392 (1907).  As Professor McCarthy has noted, the law thus recognizes “the inherent right of every human being to control the commercial use of his or her identity.”

[Flynn, WORLD FAMOUS (By, Say, New Jersey Standards): Expanding The Right Of Publicity Nationally And Internationally, ILN IP Insider, July 2019]

As an ILN colleague noted in a post last year, “A celebrity’s most valuable asset is likely their name and likeness.”  Today’s post further examines what is meant by “right of an individual,” as referenced above.  Where I questioned in Publicity Exactly What Was Missing From Monkey Selfie Case, ILN IP Insider, February 2016, whether such right could extend to a living “individual” creature aside from a human being, we now look at how various jurisdictions answer the question of whether such rights extend beyond the lifetime of the human beings enjoying them.  As we will see, whether such rights are interred with their bones may depend on where one lives and dies.  Et vos, iudices et legum.

In a recently-enacted statute that will become effective for and applicable to persons residing in New York who pass away on or after the 180th day after the November 30, 2020 bill signing, New York said the right of publicity does extend post-mortem.  The New York law protects both “deceased personalities” and “deceased performers,” which the act defines as:

1.     For purposes of this section:

  1. “DECEASED PERFORMER” means a deceased natural person domiciled  in  this  state  at the time of death who, for gain or livelihood, was regularly engaged in acting, singing, dancing, or playing a musical  instrument.
  2. “DECEASED PERSONALITY” means any deceased natural person domiciled in this state at the time of death whose name, voice, signature,  photograph, or likeness has commercial value at the time of his or her death, or  because  of  his or her death, whether or not during the lifetime of  that natural person the person used his or her name,  voice,  signature, photograph, or likeness on or in products, merchandise, or goods, or for purposes  of  advertising  or  selling,  or solicitation of purchase of, products, merchandise, goods, or services.

[NY Civil Rights Law § 50-F. RIGHT OF PUBLICITY].

The act makes liable for damages any person who “uses a deceased personality’s name, voice, signature, photograph, or likeness,  in any manner,  on or in products,  merchandise,  or goods,  or for purposes of advertising or selling, or soliciting purchases of,  products,  merchandise,  goods,  or services,  without prior consent from” the personality, or the personality’s estate or rightful heirs. Likewise, the act makes liable for damages any person who “uses a deceased performer’s digital replica in a  scripted audiovisual work as a  fictional character or for the live performance of a musical work shall be liable for any damages sustained by the person or persons injured as a result thereof if the use occurs without prior consent from” the performer, or performer’s estate or rightful heirs.  Under § 50-F.8, the New York Act applies up to 40 years after the death of the deceased personality.

So, there may be two reasons that the King’s estate cannot invoke the protections of New York law—first, his death was reported in 1977, approximately 43 years ago, and second, he was not domiciled in New York at that time.  But since he was rumored in the 2000-2010 period to have been working as a policeman in New York City (though he would have been 65-75 years old during that time), he may have a claim under New York if he enjoys his police pension until May 2021 and has not, as have many of his fellow officers in retirement, moved to one of the more attractive out of state locations for retirees.  (In addition to that possible law enforcement stint, some believe that the “FBI enlisted Presley as an undercover agent…to help the agency infiltrate a criminal organization called ‘The Fraternity,’ which was apparently made up of dozens of racketeers.)

Though tempted to paraphrase the Chairman of the Board rather than the King to assert that if one can make a case in New York one can make it anywhere, differences in state law suggest that such absolute statements are hard to back up.  First, according to a recent International Trademark Association (INTA) survey, there are some states that recognize the right of publicity but have not considered whether such right exists post-mortem (such as Minnesota, Missouri, New Hampshire, New Mexico, Rhode Island, Utah, and West Virginia) or have seemingly rejected it, such as Massachusetts and Wisconsin. (According to the survey,  fifteen states–Alaska, Colorado, Delaware, Idaho, Iowa, Kansas, Maine, Maryland, Mississippi (Tupelo’s pride notwithstanding), Montana, North Carolina, North Dakota, Oregon, Vermont, and Wyoming—do not recognize even a living persons’ right of publicity). Even among states recognizing post-mortem rights of publicity, the laws of such states vary on both the duration and domicile criteria, with duration ranges from 10 (Tennessee) to 70 (California) to 100 years (Indiana) and with the states of Indiana and Washington not limiting the rights to those domiciled in such states at the time of death.  Beyond that, there are a variety of state law differences to consider as you prepare to help the next (or maybe present) King or Prince bring a right of publicity claim post-mortem  [Minnesota legislators considered, but ultimately shelved a proposed act known as the PRINCE Act (Personal Rights in Names Can Endure) suggested soon after the death of Prince Rogers Nelson later called the Artist Formerly Known as Prince and the Artist; Prince’s estate remains embroiled to this very day in tax and valuation controversies, by the way] Here are just a few of those variations:

  • While many states have not expressly considered the questions of domicile, Alabama (resided there “at any time”), South Dakota (requiring citizenship and domiciliary)[, and now New York] limit the right to those domiciled there while Indiana and Washington, as noted above, have no domicile requirements.

  • While many states have not determined whether they protect post-mortem publicity rights or for how long, these states have determined that the rights are protected for stated period: Oklahoma (100 years each, like Indiana), Washington (75 years), Hawaii and South Dakota (70 years each, like California), Ohio (60 years), Alabama (55 years), Arkansas, Illinois Kentucky, Nevada and Texas (50 years each), Florida (40 years), Pennsylvania (30 years), Puerto Rico (25 years), Virginia (20 years, e. 10 more that Tennessee)

[INTA, Right of Publicity State of the Law Survey (2019)]

Perhaps not wanting to be the site of extended litigation or maybe knowing that Elvis remains with us, it is interesting that Tennessee, the location of the King’s Graceland home, has such a limited ten-year period.  Maybe they have been checking the many Elvis maps and tracking sites that remain out there.

One considering such questions cannot ignore the law outside the United States either.  Beyond the time he famously spent in the US armed services in Germany in the 1950s, Elvis has been sighted since 1977 in, among other places, Ibiza (a seemingly lovely and lively Spanish island), Oman, Norway, and, back in Berlin, “purchasing an extra-large pastrami on rye, pickles and chips.”  In Spain, INTA notes, one’s post mortem publicity rights are protect “[o]nly honor/moral aspects,” with “no patrimonial right,” and others are “[f]ree [to] use of name when no damage is caused to reputation/honor.”  The INTA also reports that Germany does indeed protect post-mortem commercial publicity rights “for up to” 70 years, though earlier decisions, according to other commentators, suggest shorter time periods are applicable in reality.  Norwegian law takes special care to protect “honour and reputation,” and will do so even if it means “restricting the right to freedom of expression,” as Bjørnar Borvik has noted in  The Norwegian approach to protection of personality rights : with a special emphasis on the protection of honour and reputation (2004) (at 23-24).  But it is not clear from my research whether this protection exists post mortem in Norway, or Oman for that matter (though it appears not to exists post mortem in the  UAE, according to INTA, which is Oman’s neighbor).

Outside of those jurisdictions where Elvis has been sighted, there are a number of countries to note (because he may be there, simply keeping a lower profile).  For instance, one analysis notes that in Mexico an action for damage to the right of publicity can only be brought by the heirs of the victim when the victim “has attempted the action in life,” and there is no evidence that Elvis ever sued those responsible for Fun In Acapulco, despite the obvious temptations. Similarly, India recognizes the right of publicity thought without any specific statute—as one commentator noted, “the violation of the right of publicity can be construed as unfair trade practice, misappropriation of intellectual property and also as an act of passing off,” and is seemingly enforceable post-mortem.  We quote this representative discussion at some length:

  1. How long does protection of the right last?

There is no statutory provision or case law in India prescribing the duration of the right of publicity. The right of publicity lasts at least for the individual’s lifetime, and sometimes after his or her death, depending on the commercial value attached to such individual after his or her death.

Due to this lack of clarity, the duration of the right may be decided by the courts on a case-by-case basis.

  1. Is the right protected after the individual’s death? For how long? Must the right have been exercised while the individual was alive?

There is no specific provision under Indian law relating to protection of the individual’s right of publicity after his or her death. However, as a property right, the right of publicity is inheritable and can be protected by the legal representatives of the dead individual against any unauthorised use.

As regards the duration of protection of the right after death, it will depend upon the commercial value attached to the dead individual and will be decided by the courts on a case-by-case basis.

  1. If post-mortem rights are recognised, who inherits the rights upon the individual’s death? How is this determined?

There is no specific statute in India regarding post-mortem rights of an individual. However, under the Indian law of succession, the rights of an individual devolve on the legal representatives of the individual after his or her death. Legal representatives include the individual’s widow or widower, children, parents and other members of the family as prescribed under the law of succession.

[ANA Law Group, Right Of Publicity Under Indian Law]

Similar, inheritance-focused approaches seem applicable in Greece, Brazil, Canada (14 years), and  China.  Conversely, a number of countries, such as South Africa, Japan, and Israel, do not appear to recognize post-mortem publicity rights, whether as inheritable property or other commercial right.  A host of other countries have less than clear positions on whether post-mortem publicity rights are recognized, under what circumstances, and for what durations, if any.

The post-mortem right of publicity is part of a current Presley business valued at $300 million in 2020.   That is more a testament to his staying (around) power than to the patchwork of jurisdictions recognizing a post-mortem right of publicity as we have described here.  While I’ll avoid the hyperbole of Leonard Bernstein’s saying that “Elvis Presley is the greatest cultural force in the 20th century” or the documentarian asserting that asserting that “the rise and decline of Elvis Presley [i]s a metaphor for the rise and decline of America,” I will agree with Mojo Nixon and Skid Roper that even today:

Elvis is everywhere, man!
He’s in everything
He’s in everybody…

Elvis is everything
Elvis is everybody
Elvis is still the king.

[Elvis Is Everywhere, performed by Mojo Nixon and Skid Roper]

and will even be the subject of a soon-to-be-published comic-book-style graphic novel because he “transcends music,” “still maintains a hold on pop culture over 40 years after his death,” remains “larger-than-life” (pun perhaps intended), and is perhaps best compared to “the Son of Krypton.” He is still King, in large part, because Elvis remains fun for many of us, 43 years after his death (or whatever).   Either way, “why not hope” that he lives somewhere in some form, whether literally as conspiracists rant or metaphorically as Mojo raps.  So, as we conclude this set with the catchphrase first used in 1956–“Elvis has left the building!” – do we end it there? Or do we ask the obvious question: “But where did he go?”

I hope some of the legal details help you make some made sense of where to look and what to look for.  As one trying to sort out a mystery involving the King’s oddly matched acquaintance, Richard Nixon (and noting that we just passed the 50th anniversary of that meeting) might suggest, maybe just “follow the money” to figure out why questions of post-mortem right of publicity matter.  Or maybe following the money is pointless because Elvis’ popularity remains about more than money and because he may be able to bring claims wherever the right of publicity is recognized for the living anyway.  As George Klein noted, “If you’re an Elvis fan, no explanation is necessary; If you’re not an Elvis fan, no explanation is possible.”

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