VOL. 122 | NO. 154 | Thursday, August 16, 2007
Law & The Courts
Elvis' Legacy Echoes in Legal Field
By Amy O. Williams
His face or likeness has appeared on everything from pairs of nail clippers and candy bar wrappers to bottles of wine.
But rest assured that every time an image of Elvis Presley appears on an item in the marketplace these days, someone has paid a fee for it. And if the individual responsible for the item did not pay a fee, that item likely did not stay on the market for very long.
Today, Elvis Presley Enterprises Inc. (EPE) makes millions of dollars using Elvis' image and likeness, but attorney C. Barry Ward said he remembers a time when that was not the case.
In the first few years following Elvis' death in 1977, money was hard to come by before the family opened the mansion for public tours.
"The estate was desperate for money from 1977 to 1981," Ward said. "They were flat broke and couldn't pay the federal estate taxes."
Ward, a partner at Glankler Brown PLLC, first became involved with Elvis' estate in 1978 when, as a young attorney, he was asked to defend claims against it.
Can't take it with you
As the claims began to roll in, the right to use Elvis' name and image landed at the heart of landmark litigation in Tennessee. The cases involved the right of publicity, and the litigation that would follow those initial claims would modernize Tennessee law regarding the rights of the deceased.
The first case Ward worked on involved a local nonprofit organization that wanted to erect a statue of Elvis - the one that originally stood at Beale and Main streets. The fight was over whether the group, Memphis Development Foundation, could sell statuettes made in the image of Elvis to raise money for the statue.
Another company, Factors Etc. Inc., claimed it had the right to use Elvis' image, and would not allow the sale of the statuettes and that the estate did not have control over Elvis' name, image or likeness.
Now-retired U.S. Court of Appeals Judge Harry W. Wellford ruled that Elvis’ estate had the right of publicity.
The decision by Wellford, who at the time was a U.S. District judge, was appealed to the Sixth Circuit, where a panel of judges in an opinion written by former Chief Judge Gil Merritt of Nashville reversed him.
The team managing the estate – which included Jack Soden, Priscilla Presley, and a host of accountants and bank representatives – decided to pursue the matter in state court, and intervened in the suit that was being handled by Merritt.
Then appellate Judge William C. Koch, now a member of the Tennessee Supreme Court, wrote an opinion saying that, according to Tennessee law, Elvis’ right of publicity had survived his death and remained enforceable by his estate, reinforcing Wellford’s original ruling.
That opinion was upheld in federal court in 1987 and changed the fate of Elvis’ legacy.
It gave Presley’s estate exclusive rights to Elvis’ name and likeness.
"(That case) has done a lot," Ward said. "It is one of the most cited cases in entertainment law."
The King still influences
Attorney Bill Bradley agrees. Bradley, also a partner at Glankler Brown, has worked with the Presley estate and with EPE over the years. He has dealt with people all over the world claiming to be heirs to Elvis' fortune, and with the outrageous items they try to sell bearing the King of rock 'n' roll's image.
"From a legal perspective, the biggest thing Elvis did, he propelled state law of the right of publicity into a major source of income for the estate," Bradley said.
Since the opinion was written, court decisions in New York and California, which have high populations of entertainers, have cited Koch's opinion, Ward said.
When times were tough and the estate was broke, Priscilla Presley made one strategic decision that ensured the success of the Presley estate's future - she kept Graceland.
Even with offers of $2 million to $4 million for the mansion and its property, she decided not to sell it, and that, Ward said, was a great decision.
Graceland, along with Elvis' music catalog and the licensing made possible by Koch's opinion, are the three major sources of income for EPE today, Ward said.
"To have exclusive rights to Elvis Presley," he said, "it's unbelievable. It's worth a fortune."