Reconstructing the Soul of Elvis:The Social Development andLegal Maintenance of ElvisPresley as Intellectual Property [1]

DAVID WALLCentre for Criminal Justice Studies, Faculty of Law, University of Leeds, U.K.

Everything that could be written about Elvis Presley has been written.There are few contemporary figures who have provoked so much news-copy and hard-print. Yet, despite this wealth of information, there has beenlittle rigorous analysis and virtually no empirical research on the culturalimpact of Elvis (Frith 1994:277). All research has tended to be biograph-ical, concentrating only upon the man and adding little to our overallunderstanding of this important period in late twentieth century socialhistory. One of the harsh realities about Elvis, which may explain the lackof academic interest, is that he was not actually that stimulating as aresearch subject (Cohn 1969:58). For the purposes of academic study, Elviswas little more than an interesting historical artefact. An observation thatstands in stark contrast to his cultural impact, which was of crucialimportance. Whilst deeply offensive to most Presley-philes, this perspectivenevertheless does give the researcher a wider and more optimisticmethodological focus.

When Elvis’s body was interred on 18 August 1977, his image and itseconomic value did not go into the coffin with him. Rather, the imageentered the public domain and faced the ultimate threat of dilutionthrough unlimited access. Once control was established, the intellectualproperty known as Elvis, which bore quite distinct qualities from theperson formerly known as Elvis, became an area of ‘intellectual’ real estatethat contained characteristics similar to physical property. As such, it had tobe policed in order to maintain its security and protect it from theft.

This article contributes to our understanding of the development ofpopular culture by exploring the career of ‘Elvis’ the intellectual property.

International Journal of the Sociology of Law 1996, 24, 117–143

0194–6595/96/020117 + 27 $18.00/0 © 1996 Academic Press Limited

The first part looks at the recapture of the image and the subsequent legalresurrection (under U.S. law) of ‘Elvis’. The second looks in detail at thepolicing action that maintains the property; action that has resulted in alegal legacy that has impacted upon both the U.S. common law and, morerecently, upon state legislation. The final section draws conclusions aboutthe nature of the policing of Elvis’s soul.

The Elvis Industry

After Jesus Christ, Mickey Mouse and possibly Princess Diana, there isprobably no name in the world that is more familiar (Pike 1993:58). “Elvisis where pop begins and ends. He’s the great original and even now”, wroteNick Cohn over a quarter of a century ago (1969:23), “he’s the image thatmakes all others seem shoddy, the boss… Elvis is the king”. “He was thedefinitive American pop culture hero, whose infinite flexibility encom-passes everything American from the sublime to the grotesque” (Quain1992: xvii). “I can guarantee you one thing, we will never agree on anythingas we agreed on Elvis” said Lester Bangs about the most famous Americanwho ever lived (Bangs 1977, 1987:216).

Whilst he was alive, the legend of Elvis pricked the consciousness ofnations and inspired their younger generations. It was this peculiarmixture of youth, combined with product accessibility, (personal) obscurityand ambiguity that were the secrets of his iconic success.

With Elvis, demand always outstripped supply; his manager Col. Parker,wanted it that way (Vallenga 1988). In the early days, people could not getenough of him and then he went into the army and subsequently did notperform live for a decade, only appearing in his distinctive traveloguemovies. He never performed outside the North American Continent. Inthe late 1960s, he came out of exile and played the cabaret circuit to arapturous response. During the 1970s, his health began to decline, as didhis public image which was threatened, in July 1977, by the publication ofwhistle blowing revelations by his former bodyguards, Red and Sonny West,about his ‘prescribed’ drug abuse (West et al. 1977). By August 1977, hehad deteriorated physically through poor diet, over-use of prescribed drugsand crash diets in preparation for his gruelling tours. Only 3 monthspreviously, his diet and drug dependency caused him to collapse during aconcert at the Baltimore Civic Centre (Chicago Tribune 1994:12; LifeMagazine 1995:75). He also appeared to be mentally exhausted, his publicimage had reached a low point and his estate was almost bankrupt(Vallenga 1988), even if his concerts continued to sell out. It was in this sadstate that he departed from this world, falling off the toilet seat atGraceland sometime between 9a.m. and 12.30p.m. on 16 August 1977,

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whilst trying to focus his dimming eyes on a book about sex and astrology(Thompson & Cole 1991; Pike 1993).

Yet, within hours of the sad demise of the King of Rock and Roll, the post-mortem Elvis industry started to develop, which has continued to thrive eversince. Today, almost two decades later, it is worth millions, employsthousands and has a continually increasing turnover. This increase is thesubject of the following discussions. Whilst it is natural to expect that therewould be a rise in demand for memorabilia immediately after death, it isalso the case that the demand would then start to decrease as demand wassatisfied. Yet, all signs indicate that Elvis remains bigger than ever, hisrecords continue to sell in bulk and people still watch his films which haverecently been released on video and laserdisc. Away from the traditionalmarketing formats, his image has also appeared with super hero powers incomic strips like Elvis Shrugged, computer games [2] and CD ROM [3].More recently was the appearance on the World-wide Web of a home page[4] and e-mail discussion lists [5]. You can even e-mail Elvis atelvis@icomm.com. He has become the subject of religious adulation andhis image features in novels (e.g. Graham & Baty 1984; Womack 1993),plays [6], musicals [7] and many contemporary Hollywood movies [8].

The Elvis merchandising industry has proliferated and, as new mediadevelop, the original material is re-packaged accordingly:

Nearly two decades after Elvis’s death, his record company is stillfinding fresh ways to re-package his musical canon. (Tomashoff et al.1994:29).

Such an industry would not have developed with such vigour whilst Elviswas alive because of the nature of the organization of the Elvis estate, amusic industry which seems to display a singular ability to capitalize uponthe death of its artists, and recent changes in the mediums by which themusic industry operates, such as the introduction of the compact disc,which has sustained record sales when they would have otherwise demised.Most importantly, such an industry would not have continued developinghad there not been (legal) action to recover control of the image of Elvisfrom the public domain.

Elvis’s Intellectual Property Value

Each ‘star’ has a period during their career in which their popularity peaksand their public image is consolidated. It is this snapshot which eventuallybecomes the intellectual property associated with the ‘Star’; it contains theproperty value. A constant threat to this reified image, and to its value, isthe artist themselves, as their artistry and ambitions often cause them to

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develop their artform in directions different to those which made thempopular. This development creates a contradiction and dilutes the image,causing its overall property value to deteriorate.

A working example of attempts to control this type of contradiction canbe found with The Rolling Stones. Whilst the Stones constantly strive tocreate new material, one only has to attend their live performances torealize that a large part of their audience is demanding the old songs. Theyidentify with the image and musical form that was created by the group 30years ago. The Rolling Stones, nevertheless, do maintain this image andmaintain its value by using innovative, ‘media’ events, such as transmittingVoodoo Lounge on their World-wide Web home page (http://www.sto-nes.com). Perhaps more importantly, they are masters at maintaining theirown property value and capitalize upon the dysfunctional dynamics of popgroup existence, especially with regard to the breakups, the in-fighting andthe general ‘bad boy’ image.

The death of an artist creates both clarity and confusion. The claritycomes from the fact that the image which holds the property value ceasesto contradict the artist’s living persona. In the long term, death ordissolution of partnership or artistry has the effect of rarefying the artistand alienates the abstract image from its physical origin, it also encouragesreification (Marx 1888; Feurbach 1957; Kolakowski 1981). By replacing thephysical presence as the only concrete representation, this reified imagehas two important qualities. Firstly, it is less damageable in so far as thecreative threat of the artist to develop or dilute the image is removed.Secondly, this reified image is more easily manipulated and controlledbecause the artist can no longer intervene.

The confusion tends to arise over ownership of the image and the rightsto use it. This is discussed later.

Two key processes have retained public interest in, and demand for,Elvis. They are his deification and the speculation over his death.

In the beginning there was the word, and the word was Elvis. (Harrison1992:9).

Cynics will argue that the cult of Elvis is merely another publicity ventureby Elvis Presley Enterprises (EPE) in order to keep the intellectualproperty called Elvis alive. Whilst it cannot be denied that the deificationof Elvis has been very good for business by perpetuating and evenincreasing the demand for Elvis products, it does, nevertheless, seem tohave happened despite the estate rather than because of it. Of particularrelevance here is the observation that a great deal of the worship takesplace outside the U.S.A. If the estate had engineered the cults, the focuswould have been closer to Memphis where they could have kept it under

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greater control. In response to the allegation that the Elvis cult has beenkept alive by clever and manipulative marketing, Steve Marshall, the publicrelations spokesman for EPE, said that the estate had no need formarketing because:

It would take a really deliberate effort to mess this Elvis thing up. Elviswas so dynamic he sells himself. He has such a tremendous followingand had such tremendous talent, there is no marketing in it. (Harrison1992:97).

There are two sides to the debate over Elvis’s death, the first is whetheror not he did actually die and the second is how he died. A special date forthe debate over Elvis’s death was 13 June 1993, because after a decade anda half of speculation and reported sightings, it was the date when the WeeklyWorld News, which had kept the story alive, finally put Elvis to rest. Theyclaimed that Elvis died of sugar diabetes in May 1993 at the age of 58,instead of when he was 42 on 16 August 1977.

Whilst most Elvis aficionados only accept 16 August 1977 as being thetraditional, legally accepted date of Elvis’s physical demise, the speculationover his death, which for the most part has been contradictory andinconclusive, has created great mystery and controversy and has furtherincreased the intellectual property value of Elvis. Interestingly, on 6January 1995, William Hill bookmakers increased their odds on Elvisturning up alive and well from 200-1 to 500-1. At one point in the late 1980swhen the sightings were at their peak, the bookmakers faced a possible£2m pay out if Elvis had proved not to be dead (Devlin 1995).

There are a number of books containing death theories (Brewer-Giorgio1988, 1990; Thompson & Cole 1991) [9] and, in 1991, a poll found thatone in five Americans believed that Elvis was still alive (Hirshberg 1995:91).However, whilst interesting, the whole issue is ultimately inconsequential tothis research; its existence is what matters here.

Sadly, the one fact that all of the death theorists have overlooked is thatElvis was just an ordinary human being who eventually cracked under thestrain of being Elvis. Perhaps being Elvis was more of a physical andpsychological burden than any ordinary mortal human could sustain.Priscilla Presley, Elvis’s ex-wife and executor of his estate, put the Elvisadulation into perspective:

People put him in a place he couldn’t live up to, they just didn’tunderstand that he wasn’t a god, he was a man. (Ferraiuolo1995:C6).

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Legally Reconstructing Elvis

In the decade-and-a-half-long legal struggle to regain control over Elvis’simage, a formidable body of common law and legislation has accruedwhich has developed the rights of publicity and trademark in the U.S. ThisU.S. common law has culminated in the social and legal reconstruction ofElvis. As will be examined later, the legal cases which led to thisreconstruction have themselves attained a sort of legal celebrity, and havebeen used to support arguments in many subsequent cases concerningartists and their publicity rights and image.

Prior to Elvis’s death, there was little significant legal action as there waslittle confusion over the ownership of the image (Wall, forthcoming).However, the fact that there was so little legal action tells us a great dealabout the way that the Colonel took care of business. Vallenga (1988)suggests that the Colonel, an honorary title, did not like any sort ofconfrontation because of his deep rooted fear of being discovered as anillegal Dutch immigrant called Andreas van Kuijk. Whilst this mightexplain why Elvis (or Parker) never left the North American continent toperform abroad, it is a view that is rejected by Todd Slaughter, of theOfficial Elvis Presley Organization in Great Britain, who argues that Parkerhas never disputed his Dutch origins and instead blames Elvis’s lack ofpersonal will to travel (Slaughter 1994).

If the explanation regarding Parker was found to be true, it mightexplain his reluctance to engage in legal action. However, in addition tohaving a powerful personality, Parker always appeared to be in a strongbargaining position. Any reluctance to engage the law was probablyreinforced by an identifiable deference on the part of both Elvis and hisfather to fall in line with Parker’s wishes; to not engage themselves withlawyers unless defensively.

The main legal actions, which started in the days immediately followingElvis’s death, fell into two groups. The first group mostly financial, werebrought against the estate by others which involved affairs arising out ofthe death of Elvis. There were a number of such cases, but perhaps themost interesting was an action brought by the parents of Ginger Alden,Elvis’s girlfriend immediately prior to his death (Jo Lavern Alden v. Vernon E.Presley 1982). They sued the Presley estate for payments on their house.Elvis had apparently promised to pay for it prior to his death but had diedbefore any paperwork was signed. Whilst this seems to be disrespectful,Elvis’s father (acting as executor) encouraged claimees to sue the estatewhen he was faced with requests for payments [10]. Why Vernon placedsuch responsibility with lawyers is itself interesting, on the one hand it ispossible that he acquiesced in the law and to lawyers, holding unrealisticexpectations of their power; an attitude that was probably a legacy of hisown experience in the late 1930s of being convicted and imprisoned for

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forging a cheque. On the other hand, it is more likely that such a courseof action merely shifted the onus of responsibility to someone else. At thetime, Vernon was suffering from the heart disease which eventually killedhim. This observation is important because it explains why the estate didnot start to take direct action until after Vernon’s death. It was the secondgroup of cases which eventually reconstructed a new Elvis. They were legalactions in which the estate defended the Elvis Presley name and image; theearly cases (listed below), involved the assignees [11] whilst the later casesinvolved the estate.

Taking Care of Business [12]

After the death of Vernon in 1979, the estate was left in a state of disarrayand on the verge of bankruptcy. Whilst his family and friends wouldprobably have liked things to continue as before, with Parker managingaffairs, the Shelby County Probate Court appointed Priscilla Presley,Presley Accountant Joe Hanks and the Memphis National Bank ofCommerce as successor executors, and ordered an investigation into theestate’s financial affairs. The resulting report, known as the ‘originalreport’, prepared by Blanchard Tual, lawyer and guardian ad-litem to Elvis’ssole-heir, Lisa-Marie, was very critical of Parker’s management of Elvis’saffairs and found the estate to be in a bad way financially (Vallenga1988:179). Whilst Elvis had been one of the highest paid performers of alltime, the estate was said to be worth less than $500k and was headingtowards bankruptcy (Hillburn 1989:10). All of the major financial assets,such as song royalties, had been sold off at Parker’s instigation in the early1970s for what were derisory sums after taxes and Parker’s 50% cut(Vallenga 1988). In addition, Elvis had lost money in a series of badinvestments (Parker 1993). The estate had been kept buoyant by the feesgenerated by Elvis’s punishing, but highly remunerative, tour schedule.However, when those fees dried up, the estate’s main source of incomeceased (Hillburn 1989:10). In his report, Tual found that Parker was “guiltyof self-dealing and over-reaching and has violated his duty both to Elvis andto the estate” (Vallenga 1988:179). The Probate Court accepted most ofTual’s recommendations and encouraged the estate to recover moniesfrom Parker. All further payments to Parker ceased and the estate filed suitagainst Parker and RCA Records to recover existing monies (Estate of Presleyand Parker v. Hanks). In 1983, the legal action was settled in favour of theestate. Parker turned over the Presley assets to the estate in exchange fora cash payment of over $2m from RCA Records. In addition, RCA paid theestate $1·1m in royalties owed on recordings sold since 1973 (RCA Recordsv. Hanks 1982, 1983). Parker’s grip over the Elvis machine dwindled.

The estate subsequently pursued a vigorous campaign to prevent the loss

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of further potential earnings. An example of this type of activity was a seriesof actions mounted since 1977 relating to the monies collected for advanceticket sales for the tour concert which was cancelled due to Elvis’s untimelydeath. These actions include North Carolina State Treasurer v. City of Asheville,1983; Presley v. City of Memphis, 1988, 1989. Whilst purchasers were offeredrefunds, many retained their tickets as souvenirs; therefore the unreturnedmonies have remained in limbo since 1977. The estate has claimed a rightto those monies; however, it has not always been successful. For example,Elvis was scheduled to perform a sell-out concert at Nassau Coliseum on 22August 1977, but only 10% of the 17,000 ticket holders ever claimedrefunds. In 1990, a New York Supreme Court judge placed the $8kunclaimed ticket money in the state’s abandoned property fund (Robbins1995:17; Presley v. County of Nassau 1990).

Once the estate had gained control over the Presley finances, it tookfurther legal action to increase its control over the Presley image andname. Over the next decade, the judgements in five major legal actions inthe U.S. clarified and strengthened the common law by establishing that acelebrity’s rights to publicity could descend to heirs after death. They alsocontributed to the development of legislation in a number of states,including Tennessee. The legal actions were clearly influential in thedevelopment of state legislation, especially the Personal Rights ProtectionAct (Tenn. Code. Ann. @ 47-25-1101-8) which established that a celebrityright to publicity [13] existed in Tennessee.

The judgements in the Elvis cases often explored areas of commonground, but their primary foci fell into two areas; the first being trademarksand service marks, and the second being about the rights to publicity.These cases were important in establishing that the rights to publicityexisted, and in defining the scope and nature of the Elvis image asproperty. When Elvis died, his image, name and publicity rights wentimmediately into the public domain; the ‘Elvis’ cases were instrumental inreclaiming those rights. Discussed in full later, they were Presley v. Russen,Factors etc. v. Pro-Arts, Memphis Development Foundation, EPIMF v. Crowell, andEPE v. Elvisly Yours [14].

The Elvis cases have allowed the estate to define the nature of the Elvisproperty and establish legal control over it. They have also provided theestate’s lawyers with the tools by which the property could be subsequentlypoliced and controlled.

The Tennessee Waltz: The Role of Elvis Legal Action in theDevelopment of the Rights to Publicity in the U.S.A.

At the time of Elvis’s death, the right to publicity had not yet been firmlyestablished in Tennessee and the situation in the other states was far from

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clear, leaving unresolved the legal status of the celebrity’s publicity rightsafter death. In the decade and a half after Elvis’s death, the Elvis cases, withothers (Boxcar Enter. v. Lancaster (1983), Lancaster v. Factors, and importantlyCommerce Union Bank (1981) [15]) contributed to, what in retrospect areclearly, three phases of the legal debate over the rights to publicity. Firstly,whilst the rights to publicity existed during the lifetime of the celebrity,their ‘descendibility’ to heirs was not clear at the time of Elvis’s death.Secondly, this situation developed into one in which the rights wereaccepted as ‘descendible’ if exploited during the life of the celebrity (andwere a proven and tangible property that could be passed on to heirs).Finally, the rights were held to be descendible regardless of whether or notthey had been exploited during the celebrity’s life.

On the face of it, the Elvis cases appear to have attracted contradictoryand confusing decisions. However, a sense of perspective can be gainedwhen the chronological development of the decisions is examined.Importantly, the judgements in each case at each stage informed the nextstages of other cases when cases were running simultaneously. TheEntertainment Law Reporter (1982, 1983) referred to these conflictingjudgements, appeals and inter-jurisdictional conflict between Tennesseeand New York and New Jersey, as ‘the Tennessee Waltz’. The court in Factorsetc. v. Pro-Arts (1981) was less romantic in its summation and referred to theSixth Circuit’s (which includes Tennessee) resistance to the judgements ofthe Second Circuit (includes New York and New Jersey) in MemphisDevelopment Foundation (1977) as a ‘parade of horrors’. The followingsummary of the main Elvis cases serves to illustrate the legal developmentof the intellectual property known as ‘Elvis’, and to demonstrate the factthat these cases did not just happen, rather they were practical manifesta-tions of power relations which are expressed within the framework ofpopular culture. A final reason for describing the cases is that they areinteresting stories in their own right; stories which the public love aboutthe lives of the rich and famous, intermingled with tragedy and a sense ofthe bizarre. More importantly, they tell us about how the Elvis industryoperates.

Factors etc. v. Pro-arts (Second Circuit – New York)

In January 1976, a company called Boxcar Enterprises was set up jointly byElvis and Col. Parker to exploit the merchandising potential of Elvis’simage [16]. On the day of Elvis’s death, Vernon Presley, acting as executorto the Elvis estate, continued the agreement with Boxcar. Two days later, on18 August 1977, Parker persuaded Vernon to license the rights of publicityto a promotions company called Factors Inc. of New York (Presley v. Russen1981:1347:para.22). Parker retained a half share (his usual cut) in any

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profits arising from the agreement. Three days after the death of Elvis, anOhio corporation called Pro-arts published, and sold, a poster whichdisplayed a picture of Elvis along with the words ‘in memory’ and‘1935–1977’ printed on it. Pro-arts believed that they had bought the rightsto the picture from its creator, Bud Skinner, the staff photographer for theAtlanta Journal (Factors etc. v. Pro-arts 1980:1102). They were subsequentlysued by Factors Inc. and Boxcar Entertainment Inc. (Factors etc. v. Pro-arts1978).

In its licensing agreement with Factors, Boxcar claimed exclusiveownership of all rights to the use of the ‘Feature’, and that it was “the soleowner of the entire right, title and interest in the ‘Feature’ when used inconnection with merchandise” (Presley v. Russen 1981:1347:para.24).Boxcar also stated that it had the full right, authority and power to enterinto the agreement. The purpose of the legal action was to seek thecontinuation of the licensing arrangements with Boxcar that had existedwhilst Elvis was alive. In defence, Pro-arts claimed, amongst other things,their right to publish the poster under the First Amendment on the basisthat “it commemorated a newsworthy event” (Factors etc. v. Pro-arts1980:1103). The history of this complicated case is as follows. The DistrictCourt issued a preliminary injunction on 23 September 1977 (Factors etc. v.Pro-arts 1977), which was affirmed by the Second Circuit on 27 June 1978(Factors etc. v. Pro-arts 1978). This Court subsequently entered a summaryjudgement on 29 July 1980 (Factors etc. v. Pro-arts 1980) in favour of Factorsand later issued a permanent injunction prohibiting Pro-arts frommarketing Elvis memorabilia. However, the Second Circuit later reversedthat decision (on 29 June 1981) (Factors etc. v. Pro-arts 1981) on the groundsthat the court considered Tennessee law to apply to this action. At the time,and based upon the decision of the Sixth Circuit in Memphis DevelopmentFoundation (1980), there was no descendible right to publicity underTennessee (common) law (see later discussion of Memphis DevelopmentFoundation).

Pro-arts then moved for summary judgement and claimed damages fromFactors for a wrongful injunction. In response, Factors then cross-movedfor either a summary judgement or a stay of this action. In support, Factorscited the judgement in Commerce Union Bank (1981) which was the (then)recent opinion of the Tennessee Chancery Court. This held that thedescendants of country singer Lester Flatt were entitled to invoke hispublicity rights. The decision in the Commerce Union Bank case effectivelyestablished a common law descendible right to publicity under Tennesseelaw. However, the Second Circuit still denied Factor’s petition for a re-hearing on 12 January 1983 (Factors etc. v. Pro-arts 1983) on the grounds thatit was unnecessary to consider the effect of Commerce Union Bank on itsearlier decision in light of the Tennessee Chancery Court’s decision in

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Lancaster v. Factors etc. Inc. (1982) [17]. This stated that Tennessee did notrecognize a descendible right to publicity. In the light of this latterdecision, Pro-arts moved to renew their motions for summary judgementand for damages for wrongful injunction. On 14 April 1983, the caseagainst Pro-arts was dropped. The judged stated that following:

accordingly, the stay is vacated and summary judgement will be entereddismissing the complaint against the defendants… So ordered. (Factorsetc. v. Pro-arts 1983).

Memphis Development Foundation (Sixth Circuit – Tennessee)

In 1977, the Memphis Development Foundation was formed with theintention of constructing a large bronze statue in downtown Memphis tohonour its most famous citizen. In order to raise funds for the statue, theFoundation planned to sell 20-cm pewter replicas of the proposed statuefor $25 a piece. Pre-empting legal action from Factors, the Foundationsued first in the District Court for the Western District of Tennessee inorder to prevent Factors from interfering with the Foundation’s activities.In response, Factors counter-claimed to restrain the distribution of thestatuettes and was successful in securing a preliminary injunction, whichwas later affirmed (Memphis Development Foundation 1978). Factors laterobtained a permanent injunction in the District Court which allowed theMemphis Development Foundation to build memorials but not “manu-facture and sell statuettes bearing the likeness and image” of Elvis (MemphisDevelopment Foundation 1980:956:para.1). The Sixth Circuit, ignoring thejudgements on the Second Circuit and instead drawing upon the FederalDistrict Court’s earlier statement that Tennessee state courts would not findthe right of publicity descendible (Memphis Development Foundation 1978),reversed the decision in favour of Memphis Development Foundation,arguing that whilst Elvis was entitled to exclusive control over his publicityin life and did exploit it, Elvis’s right of publicity did not survive his death.The court justified its decision by arguing that to allow the right to descendwould introduce a “whole set of practical problems of judicial line drawing”(Memphis Development Foundation 1980:960), and that Elvis the hero wasmade by the public and therefore that same public owned the image. “Whois the heir of fame” the court asked. Like the Californian cases before it[18], the judgement was later overturned by the Tennessee StateLegislature in 1984 (Sections 47-25-1101 and 47-25-1108).

The traditional defence for protecting an individual’s right to publicitywas to prevent chaos in the marketplace (Gaines 1991:205). Chaos leads tothe sale of goods that have been produced with no overall quality controland which could lead to a denigration of the image and upset to the

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deceased’s family. However, as Gaines (1991:205) rightly observes, thisdefence often masked a broader motive to regulate trade and develop amonopoly.

Concern about marketplace disorder, which would recruit the monop-oly right of publicity as a trade regulation, masks the fear that theimage might fall into the public domain. (Gaines 1991:204).

In fact the marketplace already had protection through trademark lawand the tort of passing off. The Elvis trademarks were established in 1981with Presley v. Russen (1981).

Presley v. Russen (Second Circuit – New Jersey)

American entrepreneur, Rob Russen, operated a stage show patterned onan actual Elvis Presley show and called it ‘The Big El Show’. After opening‘The Big El Show’ with ‘2001 — A Space Odyssey’ (also Sprach Zarathustra),impersonator Larry Seth imitated Elvis’s on-stage actions, his poses andsinging style. The backing band was called the TCB band; TCB standing for‘Taking Care of Business’. TCB was Elvis’s personal motto expressed onitems of jewellery given to friends and also emblazoned on the tail fin ofLisa-Marie, Elvis’s personal jet. TCB was also the name given to Elvis’s ownbacking band. The estate alleged that this and other marks had come tostrongly identify Elvis’s services and also the merchandising that waslicensed or sub-licensed by him (Presley v. Russen 1981:Para. 42). They alsostated that Russen was not licensed to use those marks.

Referring to Elvis’s property value District Judge Brotman stated that:

Elvis Presley died, but his legend and world-wide popularity havesurvived. As Presley’s popularity has subsisted and even grown, so hasthe capacity for generating financial rewards and legal disputes. (Presleyv. Russen 1981:1344).

The court found that in New Jersey, under common law (as in NewYork), a right of publicity existed. Furthermore, it established that the rightwas a property right rather than a personal right attached to the individualonly (Presley v. Russen 1981:1354), and was capable of being detached fromthe individual and could be transferred for commercial purposes. Thecourt also found that because Elvis had exercised the right during hislifetime and that it had “attained a concrete form”, it should descend atdeath “like any other intangible property right” (Presley v. Russen1981:1355). Citing Chief Justice Bird of the California Supreme Court whoargued, when dissenting, in Lugosi v. Universal Pictures, Inc. (1979:846) thatthe “financial benefits of that labour should go to the celebrity’s heirs”

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(Presley v. Russen 1981:1355), the court found that “Elvis Presley’s right ofpublicity survived his death and became part of the Elvis Presley estate”.The court also found that whilst ‘The Big El Show’ was informational andentertaining, it nevertheless served “primarily to commercially exploit thelikeness of Elvis Presley without contributing anything of substantial valueto society” (Presley v. Russen 1981:1359). It also infringed the estate’s servicemarks by creating a ‘likelihood of confusion’ or deception as to the sourcesof the goods or services (Presley v. Russen 1981:1366).

The court prohibited Russen and his associates from using theestablished service marks such as the TCB logo, using Elvis’s likeness in anyadvertising or promotional material, and, finally, from providing servicesor events that cause people to believe that they are officially sanctioned bythe estate (Presley v. Russen 1981:1383).

EPIMF v. Crowell (Sixth Circuit – Tennessee)

In 1979, a group of Elvis fans approached Shelby County officialsconcerning the formation of a group to support the development of a newtrauma centre at the City of Memphis Hospital. Calling themselves the‘Elvis Presley International Memorial Foundation’, the group sought acharter as a Tennessee non-profitable corporation in October 1980.However, the Secretary of State denied the application on 12 November1980 on the grounds that “the name Elvis Presley cannot be used in thecharter” (EPIMF v. Crowell 1987). The lawyers representing the group offans and the Presley estate amicably discussed the use of Elvis Presley’sname following the Secretary of State’s rejection of the charter application.On advice from its trademark counsel, the estate (EPIMF v. Crowell 1987)formally declined in December 1980 to give the group the unrestrictedright to use Elvis Presley’s name and likeness.

It did, however, offer the group a royalty-free license to use Elvis Presley’sname and likeness if they agreed to abide by certain conditions whichlimited their activities. The estate’s offer was declined. Two months later on26 February 1981, the Secretary of State reversed the original decision onre-application, and issued a corporate charter to the Elvis PresleyInternational Memorial Foundation (International Foundation). Usingfunds raised from charging membership fees and by sponsoring an annualbanquet in Memphis, it fulfilled the dual role of supporting the ElvisPresley trauma centre at the City Hospital and also providing an annualaward of merit.

In response, and presumably in competition, to the InternationalFoundation, the Presley estate and Elvis Presley Enterprises, Inc. incorpo-rated the Elvis Presley Memorial Foundation, Inc. as a Tennessee non-profitable corporation on 14 May 1985. One of the Memorial Foundation’s

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first functions was to solicit funds from the public to construct a fountainin the shopping centre across the street from Graceland. Its formation ledto the deterioration of the International Foundation’s previously amicablerelationship with the Presley estate and Elvis Presley Enterprises, Inc. On17 July 1985, they filed an action which sought to dissolve the Foundationon the grounds that it used a deceptively similar name. The unfair-competition action filed against the Elvis Presley Memorial FoundationInc. argued that Elvis’ name and image entered the public domain whenhe died in 1977, and that because of this, the Elvis Presley InternationalMemorial Foundation had the right to use the Presley name for its fundraising.

The case of EPIMF v. Crowell (1987) eventually established that Elvis didhave publicity rights which are posthumously descendible in the State ofTennessee. On 3 April 1987, the Tennessee Appeals Court ruled that thePresley estate owned the use of his name and could prevent others fromusing it. This ruling effectively meant that the right of publicity becameinheritable property under Tennessee common law (EPIMF v. Crowell1987). More importantly, the decision clarified the hitherto conflictingfederal court rulings on the issue and affirmed a 1985 ruling by aTennessee court of equity. It was the first decision of its kind by an appellatecourt in Tennessee and had broad implications for the many popularentertainers and their families who reside there (Soocher 1987:6). Themain issue still outstanding was that whilst the Personal Rights Protection Actof 1984 [19] clearly stated that the publicity rights were both assignableand descendible, they did not clarify whether or not they could be appliedretrospectively.

Elvis Presley Enterprises (EPE) v. Elvisly Yours, Inc. (Sixth Circuit – Tennessee)

In February 1985, Sid Shaw, a London businessman, advertised Elvismerchandise in the New York Times under the name ‘Elvisly Yours’, apopular term used by Elvis fans for signing off their correspondence. ElvisPresley Enterprises brought out an injunction against Shaw to prevent himfrom selling similar products in the future. In defence, Shaw alleged thatthe estate had, in fact, previously bought his products to sell in their retailoutlet at Graceland. The United States District Court for the WesternDistrict of Tennessee held that whilst EPE was entitled to prevail on itsclaims of infringement of state and federal trademarks, and also its claimof violation of EPE’s common law and statutory rights of publicity, it alsogave judgement in favour of Shaw’s counterclaims against EPE. This latterjudgement was based upon the court’s assessment that there was “no stronglikelihood of success on the merits”. However, this judgement was laterreversed by the Appeals Court of the Sixth Circuit on 28 April 1987, only

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3 weeks after the judgement in EPIMF v. Crowell (1987). The Appeals Courtasserted that the District Court erred as a matter of law in finding no‘likelihood of confusion’ between EPE and Elvisly Yours products, so thatthe court effectively abused its discretion in denying the motion by EPE, atleast where it applied to certain goods and marks [20]. The Appeals Courtgranted EPE a preliminary injunction with respect to the goods covered byits registered trademarks, and referred the case back to the District Courtfor further proceedings in accordance with this opinion and in light of theTennessee Court of Appeals decision in EPIMF v. Crowell (1987).

In his final Appeal (EPE v. Elvisly Yours 1991), Shaw claimed that theDistrict Court had made three errors. Firstly, it had denied his (Shaw’s)asserted equitable defences of acquiescence and laches without allowingsufficient discovery to enable Shaw to effectively defend himself againstEPE’s summary judgement motion. Secondly, it had granted summaryjudgement on Shaw’s supplemental counterclaim, and thirdly, the scope ofthe injunction was too broad. The Appeals Court found in favour of EPEbut did narrow the scope of the injunction to only cover “unauthorised useof the publicity rights or trademarks for commercial purposes and limitedits powers to the United States”. This left Shaw with the rights to engage incertain activities such as writing magazine articles or books about Elvis, orin dealing with licensed products. However, Shaw argues that the estate willnot grant him a licence to reproduce the Elvis likeness or image, andtherefore the ruling is meaningless [21].

Whilst appearing to be fair in tone, the judgement neverthelessprevented (and still prevents) Shaw and “the officers, agents, servantsemployees, and all persons acting in concert or participation, of ElvislyYours Ltd.”, even though it has now ceased trading, from trading any goodswhich use the name, likeness and image of Elvis Presley or any EPEtrademarks, or any trademarks confusing for the purposes of sale,distribution, marketing, advertising and licensing of unauthorised goodsor services in the United States and its possessions and territories [22].

Shaw feels very bitter [23] about the way he has been dealt with by boththe courts and by Elvis Presley Enterprises, who he believes operate a policyof attrition such that “you can sue and might win but will probably bebankrupted in the process. Its cheaper to comply and not have the aggro(or be bankrupted)” [24].

Analysis of the Shaw case suggests that he was probably in the right placebut at the wrong time. By 1985, the common law had become strengthenedby the decisions in Commerce Union Bank (1981) and Lancaster v. Factors(1982), as well as by subsequent judgements in Elvis cases such as MemphisDevelopment Foundation. In addition, the State of Tennessee had passed itsown rights to publicity legislation in 1984.

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Table 1. Legal actions involving Elvis, or Elvis-relatedcases

5-year period No. of cases % of total

1965–1969 1[25] 11970–1974 2 21975–1979 3 41980–1984 19 221985–1989 17 201990–1994 44 51Total 86 100

The Common Law of Elvis: Legal Actions Involving the Elvis Cases

In order to obtain some empirical measure of the (growing) importance ofElvis’s legal legacy, an analysis using the LEXIS database was conducted toidentify the cases brought before the U.S. courts which have subsequentlycited the main Elvis cases. Table 1 chronologically summarizes, over 5-yearperiods, the growing impact of the Elvis cases upon the common law in thelitigative U.S.A. Whilst this is a very crude indicator and includes somewhite noise created by appeals etc., it nevertheless gives a graphic pictureof the increasing importance of the Elvis cases in strengthening commonlaw and their use in legal practice. All indications are that the regularity ofcitations will continue to increase.

One of the questions raised by the above is ‘why should the Elvisjudgements be so widely used?’. The answer is quite simply that Elvisprobably had a similar effect upon lawyers to that which he had upon thepost-war generation in general. Many of those lawyers were of the samegeneration. It is arguable that this observation actually says as much, if notmore, about Law itself as a particular form of popular culture as it doesabout Elvis.

The debates around the Elvis cases clearly illustrate seven processes [26].Firstly, they illustrate the development of the tools (intellectual propertylaws) by which the actual policing of popular culture takes place. Theyillustrate how the various judgements inform each other to reach acommon outcome. In this example, it is an outcome desired by those whowished to develop control of and maintain Elvis Presley’s publicity rights.The latter case reveals that an important driving factor here is not the willto clarify law but rather to express a power relationship. Secondly, the casesdepict what is fully at stake when highly lucrative commercial interests arethreatened; in the above situation, the celebrity’s right to publicity beingthreatened when Elvis unexpectedly died. Thirdly, the cases illustrate howmany different interests are actually involved in a celebrity’s right to

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publicity; in other words, the many facets of the now-complex Elvisindustry. Fourthly, they show how these interests are threatened by thepossibility of it entering the public domain; this is the ultimate threat to anintellectual property — total loss of control. Once the intellectual propertyenters the public domain, it ceases to be a property because no one has themonopoly right of ownership. Fifthly, and related to the previous issue, theintellectual property is also threatened by the public, particularly fans, whowill also create and trade their own souvenirs through their own economicsub-networks. Sixthly, they show the complexity of the architecture of theright to publicity and also the relationships between the U.S. Circuits.Finally, the cases show how those wishing to control the Elvis industryjustify the “continuance of their monopoly at the very point where thecelebrity seems most clearly to belong in the public domain, to us all”(Gaines 1991: 205).

The re-construction and, indeed, re-invention of the Elvis image withinthe discourse of commerce has created a new image which has effectivelyeradicated the contradictions that existed between the various Elvis publicimages that were portrayed during his lifetime, and also the contradictionsthat existed between the public image and his personal lifestyle whichthreatened his intellectual property value.

Policing ‘Elvis’

Having established that the intellectual property contains some qualitiesthat are similar to those found in a physical property, and that the Elviscases provided the tools by which to police the (intellectual) property, howdid this policing take place?

The term ‘policing’ is used here within the context of the types ofcontrol function traditionally associated with the term which serves, eithercollectively or individually, to effect the governance of the space, albeit theintellectual space that forms the footprint of the property. Within thecontext of this analysis, policing is seen to operate at both a formal(structured and by design) and an informal level (by effect). The followingsection uses case studies to examine this policing process, but first, thenature of the policing problem has to be explored further.

The marketable aspects of the Elvis image are now the property of theElvis Presley estate, which tightly polices Elvis through the agencies itemploys to licence out the Elvis name. Their prime function is to preventthe property from being appropriated, hence the need to control its use.However, because intellectual property does not have physical substance, itis capable of being appropriated in a number of different ways. It can becopied and ‘passed off’ as something else or it can be transformed, sotherefore it is important that the image does not stray too far from the

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copyrighted, or trademarked, original. The major threat to the controland/or ownership of the property comes from those who are constantly re-interpreting and developing it creatively in its own right. Where this‘transformative use’ (Schengili-Roberts 1994) takes place, such as in theargument over the sampling of copyrighted music, the property is takenfrom its original context and developed artistically beyond its original state.In certain circumstances, the ‘transformed property’ could then becomecopyrighted and be controlled by another party, which is usually anundesirable outcome for the original owner [27]. A hypothetical exampleof this ‘transformative’ process within the context of Elvis might be in thecase of Warhol’s painting of Elvis. The picture from which the screen printwas made would be subject to copyright, and whilst the originalphotographic arrangement is clearly definable in Warhol’s painting ofElvis, its use in the painting ‘transforms’ the image’s meaning and developsit into something else. In this case, another medium and another propertywhich is then exploited further. The series of paintings/screen prints havetheir own values on the art market and their images are licensed out.

Within the past few months, a very interesting example occurred of thevigilant and active policing of Elvis’s intellectual property by the estate’slawyers. Andrea Berman, a NASA Human Factors Engineer, created a‘Cyber tour’ of Graceland, which, as the name suggests, contained ‘official’(copyrighted) pictures, audio clips and information about Elvis and hisMemphis mansion. The ‘Cyber tour’, originally available through theWorld-wide Web, was removed by Berman after receiving a ‘cease anddesist’ letter from the lawyers acting for Elvis Presley Enterprises Inc. Intheir letter [28], the lawyers cited EPE v. Elvisly Yours (1991) which statesthat Elvis Presley Enterprises has the “the authority as assignee of state andfederal trademarks, service marks, copyrights and identification [publicityrights] of the estate of Elvis Presley…”, claiming that Berman wasinfringing:

(1) The exclusive right of Elvis Presley Enterprises Inc. to copy, distributeand create derivatives of its copyrighted images of “Graceland inviolation of 17 U.S.C. Section 101 et seq”.

(2) EPE’s copyrights rights in the music used in the tour, “in violation of17 U.S.C. Section 101 et seq”.

(3) Unfair competition in violation of 15 U.S.C. Section 1125 and state lawin that she infringes EPE’s rights to create a similar tour of Gracelandby either satisfying demand for an authorised electronic tour ofGraceland or by alienating potential customers with an inferiorproduct.

(4) EPE’s rights in the name, voice and likeness of Elvis Presley under statelaw.

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The letter went on to demand that Berman agreed in writing that shewould not, in future, reproduce or make publicly available the CyberGraceland Tour etc. and would not engage in any activities that infringeEPE’s rights. Also it threatened that if the Cyber Tour was not removedfrom the Internet within 7 days, “EPE will have no choice but to exerciseits rights under the law to their fullest extent” [29].

Interested in the rationale behind her prompt action, I asked her whydid she respond so quickly in removing the page from the Internet:

At the time, it seemed like the best thing to do — just complyimmediately. That letter was very intimidating, as you can imagine.[30].

She later realized “with the help of some legally-minded friends” that thestatement she had signed was so generic that if “I were to be walking downthe street wearing an Elvis t-shirt, I would be going against this statement,and a representative of Elvis Presley Enterprises could take legal actionagainst me” [31]:

After the event, she now regrets not seeking legal advice over theletter.

Now I feel like they wrote a generic, legally inaccurate letter that theyknew would intimidate me into doing what they wanted; therefore, Ifeel used. [32].

Since removing the offending material, Berman has continued develop-ing the Elvis home page from materials that do not infringe EPE’s rights.In February 1995 with much (including legal) support from outragedsubscribers, she rebuilt the ‘Cyber tour’ of Graceland using fans’ personalphotographs. Shocked at the level of publicity that she received over theaffair, Berman said “I’m having more than my 15 minutes of fame, but notmuch more” (Reed 1994:35; Higham 1995:18).

The most important aspect of the ‘Cyber tour’ of Graceland affair is thatit graphically illustrates one of the key mechanisms by which popularculture is actively policed. Other than in reported court cases, we rarely getsuch an insight into the policing process itself. Three crucial factors are atplay here. Firstly, Berman acted immediately and unquestioningly, andwithdrew the offending material the next day because she was intimidatedby the letter. Secondly, given the manner in which the ‘tour’ was produced,it is arguable under the doctrine of ‘fair use’ that the ‘tour’ did not actuallyinfringe the copyrights of EPE (Schengili-Roberts 1994). The ‘fair use’doctrine is defined in U.S. law and in Canadian common law and allowspeople, under the right circumstances (education, personal use), to copyand distribute materials without the permission of the copyright holder.

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The main problem, as Schengili-Roberts (1994) points out, is that there isno clear-cut line in determining what falls under the idea of ‘fair use’. Itcould also be argued that if the ‘Cyber tour’ transforms the nature ofcopyrighted material, there may be an argument for a ‘transformative use’of the material (see above). Thirdly, the lawyers cited Elvis cases andassumed, from prior experience, that their actions would attain the desiredresult.

The lawyers’ assumption that they would get a result from their actionsis a point that was also raised by Sid Shaw (see earlier), who believes thatthey deliberately use a combination of generic ‘cease and desist’ letterswhich threaten prosecution and bringing the full weight of the law to bear,in order to encourage compliance, which appears to be a common legalpractice (Shaw 1990:5). The thrust of his argument is that here is a clearcase of economic power continuing to prevail over justice. He argues thattheir attitude is such that “you can sue us and could possibly win, but youwill probably be bankrupted in the process. Its cheaper to pay up and nothave the aggro” [33].

A secondary, informal method, of policing the Elvis image has alsodeveloped through the various fan clubs and appreciation societies towhich the bulk of Elvis fans belong. These organizations have, throughtheir membership magazines [34], activities [35] and sales operations,effectively developed an Elvis moral economy. Collectively, the group offans act as an Elvis ‘moral majority’ which boycott all activities that runcounter to the collective view. A recent example of this informal policingfunction took place when Dee Presley, nee Stanley, Elvis’s former step-mother, wrote a supposedly whistle-blowing account of Elvis’s last years(Frydman 1994). She subsequently wrote an article in the National Enquirerabout Elvis’s alleged relationship with his mother (Presley 1992). Theappreciation societies refused to stock the book and condemned it in theireditorials. The combined effect of this economic action and negativepublicity was poor sales and the withdrawal of the book(s). With acombined membership of millions, the fans form a formidable con-stituency of consumer power.

And Supposing that Elvis were Still Alive?

The preceding discussions raise some interesting questions about thedevelopment and maintenance of ‘Elvis’ as an intellectual property. Oneproposition that illustrates the nature of these developments is thepossibility that Elvis recently celebrated his 61st birthday in good health.Supposing that Elvis’s birthday wish was to return to public life, could hethen immediately re-take control over his own image and carry on wherehe left off in 1977? Would he be legally able to be ‘Elvis’ again? The answer

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would probably be yes, but it is quite clear from the earlier discussion thatthe nature, ownership and control of the property have changed since itsoriginal owner’s death.

It is not inconceivable that Elvis might encounter similar problems tothose experienced by Clayton Moore, the actor who played the LoneRanger. In 1981, Moore [36], almost 70, was prevented from making publicappearances as the Lone Ranger after the rights to the character were sold.The new owners of the Lone Ranger made a comeback film called TheLegend Of The Lone Ranger and cast a much younger actor named KlintonSpilsbury in the Clayton Moore role; the film was a flop (Smyth 1994:C13).It was 12 years before Moore, now aged 80, was allowed to wear the sacredmask again (Baron 1994:11), and only then after a public campaign,spearheaded by Los Angeles columnist Leigh Weimers, collected over amillion signatures supporting Moore.

Whilst highly improbable, it is nevertheless possible for Elvis’s rights topublicity and the intellectual property called ‘Elvis’ to be sold.

2001: Also Sprach Elvis

Elvis has now been dead for almost 20 years, yet there are those who refuseto let him lie. Whilst these people live with a fantasy, their debatenevertheless tells us that we are still talking about him. More importantly,it indicates that the Elvis industry is continuing to flourish. It currentlyemploys many thousands of individuals: workers at Graceland, lawyers,accountants, merchandisers, manufacturers, sales people, transporters,film makers; the list is almost endless.

Elvis’s legacy is also carried on by the legions of impersonators. The ElvisPresley Impersonators Association now boasts 150 members and numbers areincreasing annually (Hirshberg 1995:91). “The cast of Elvises grows largerby the hour” (Barker & Pritkin 1992). In addition to the terrestrial Elvises,there are now ‘snorkelling’ (United Press International 1995) and ‘flying’Elvises (National Law Journal 1995:A27).

The Elvis industry shows no sign of contracting and will continue toexpand as new medias and marketing opportunities develop. Even thosewho are not devotees are constantly reminded of the King. There is now anElvis Presley credit card (Bickelhaupt & Dezell 1995:62) and official U.S.Elvis stamps now adorn letters from America. By far the most bizarredevelopment in recent months has been the translation of Elvis’s lyrics intoLatin by Finnish university professor Jukka Ammondt, who got Finland’sEurovision choir to record them onto CD. Claiming that the idea came tohim in a dream, he said “Latin is an eternal language, so what better wayto immortalise a legend?”. ‘Nunc hic aut numquam’ is Latin for ‘it’s now ornever’ (The Phoenix Gazette 1995:G1; Wainwright & McIvor, 1995:1).

Elvis Presley as Intellectual Property 137

As the industry and markets develop, so the value of the intellectualproperty increases and so does the need to further police it. It looks asthough Elvis’s legacy will not only continue into the next millenium butmay even be larger in the year 2001 than it is today.

Conclusion

The introduction stated that Elvis, the person, was an important historicalartefact, but was not as important as his legacy. If Elvis was born in 1955instead of 1935, I am sure that America would have still invented him. He,or she, may not have been called Elvis but we would still be discussing thelife of someone else who had made a similar impact upon our culture. Thefocus of this article has, therefore, not been about Elvis so much as theinteresting questions that his legacy raises about the ways in which popularculture is both developed and maintained.

Using the concept of policing in its generic form, three distinct policingprocesses are identified. The first is the development of a property whereit does not previously exist, in this case the property did actually exist buthad to be rescued from the public domain. The second policing processestablishes its boundaries and who owns it. In this example, the mainquestion was over the descendibility of Elvis’s rights to publicity; a problemthat was solved through a series of legal actions which also strengthenedthe common law on the subject. The final policing process was to policethe property in order to protect it from being appropriated, in much thesame way that, for example, a building site may be policed, by keepingpredators at bay and thus maintaining both the integrity and value of theproperty.

More broadly, this work has firstly contributed to our understanding ofthe development of law and culture by showing that popular culture justdoes not develop out of the blue; there is no invisible hand which creates it.Clearly, popular culture is the product of a specific set of social relationsthat arise, and are largely governed, by the requirements of capital on theone hand and the cultural needs of (often spontaneous or ad hoc) socialgroupings on the other. It has, secondly, illustrated that the actualboundaries between the law and popular culture are hard to define. In factthe processes observed suggest that much of the practice of law, if not thelaw itself, is in fact indistinguishable from the popular culture. There ismuch scope for further research into this issue. Finally, this work hasindicated that the policing of popular culture is not a particularly creativeprocess, it is at best conservative and at worst damaging to the property itattempts to protect.Elvis Lives, legally!

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Notes

1 An earlier version of this article was published under the same name by the Unitfor Law and Popular Culture, The Manchester Metropolitan University. Theresearch will be published in full as Wall, D.S. (forthcoming) Policing the Soul ofElvis: The Social Construction and Legal Maintenance of Elvis Presley as IntellectualProperty.I would like to acknowledge (in alphabetical order) the following people fortheir material help with this work. Andrea Berman, NASA; Neil Bowen(answered my advert in PC Format magazine); Dr Steve Redhead, Unit for Lawand Popular Culture, School of Law, The Manchester Metropolitan University;Sid Shaw, (formerly) Elvisly Yours; Todd Slaughter, Official Elvis Presley FanClub of Great Britain; Prof. Clive Walker, Centre for Criminal Justice Studies,University of Leeds.

2 For example, if looked at carefully, the crowd in Pele’s World Cup Soccer gamereveals an image of Elvis. As a matter of interest, the game contains a secret levelwhere all of the teams excluded from the 1994 World Cup were included. Theauthor of this article can be found amongst the England football team! In one‘Street Fighter’ clone game, the similarity of one of the fighting characters toElvis led to legal action being brought against the producers. Other gamesinclude Zak McKracken and the Alien Mindbenders by Lucas Arts Adventure inwhich Elvis appears on a space-ship above the Bermuda Triangle and eventuallyhelps Zak to win the lottery.

3 An authorised CD-ROM documentary of Graceland is due to be released in1996.

4 The Elvis home page can be accessed at http://sunsite.unc.edu/elvis/elvishom.html. It contains various types of information about Elvis. Importantly,the page also gives details of a legal action brought against its creator AndreaBerman by the estate. This is discussed later. I have contributed a series entitledThe Space Elvis Chronicles to the home page, so turn on and tune in. There is alsoa page which details multimedia links on the network, an Elvis detector which‘detects the presence of the King’, and an Elvis decoder which allows Elvisdevotees to send ‘secret messages that only the King can decode’. For furtherinformation and details of other home pages see Rappoport (1995:50).

5 There are three news/discussion groups/lists that can be accessed through theWorld-wide Web, they are alt.elvis.king, alt.fan.elvis-presley andalt.elvis.sighting.

6 For example, Phil Robert’s Elvis is Alive: and She is Beautiful.7 See Elvis: The Musical.8 Recent examples are Hollywood in Las Vegas, Wild at Heart, The Client to name but

a few examples.9 Also listen to the records of Mojo Nixon and Skid Roper. Nixon set up an Elvis

hot-line in 1989 to which sightings could be reported. For example,‘(619)239-KING’ on Unlimited Everything (Nixon & Roper 1990).

10 Interview with Sid Shaw, 3/2/95.11 Notably Factors Inc. of New York, see Factors etc. v. Pro-arts.12 ‘Taking Care of Business’ (TCB) was Elvis’s motto and became a registered

trademark (Presley v. Russen 1981).

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13 The issue of the celebrity right to publicity is discussed elsewhere, Marks(1988:13) also see Nimmer (1954:216) and Factors etc. v. Pro-arts (1978, 1979,1981, 1982), or see Wall (forthcoming) for a full discussion of the role of theElvis cases in the development of the rights to publicity.

14 See the Table of Cases for full titles of these cases.15 The latter case was important because it established descendibility of the

celebrity right to the family of musician Lester Flatt.16 Col. Parker has been exploiting Elvis’s image since the mid-1950s.17 Lancaster brought action against Factors because he believed that he had the

sole right to merchandise particular items of Elvis memorabilia. He won thecase because the court believed that there was no descendible right, yet this wasafter the Commerce Union Bank case in which the descendants of country artistLester Flatt were granted the use of his image.

18 See Wall (forthcoming) for a description of these cases.19 Tenn. Code Ann. @ 47-25-1101 (1994) also see Title 47. Commercial

Instruments and Transactions Chapter 25. Trade Practices Part 5. ModelTrademark Act, Tenn. Code Ann. @ 47-25-501 (1994).

20 Its judgement was strengthened by the Tennessee Court of Appeal’s (MiddleSection at Nashville) judgement that a celebrity’s right to publicity wasdescendible under the law of Tennessee. See Tenn. Code Ann. @ 47-25-1101(1994).

21 Interview with Sid Shaw, 3/2/95.22 Interview with Sid Shaw, 3/2/95, also see the introduction to Shaw (1990).23 Shaw believes that he still has a strong case and that the 1991 decision could still

be overturned.24 Interview with Sid Shaw, 3/2/95, this practice is common in civil litigation.25 This case actually involved the length of a soldier’s hair and cited the length of

Elvis’s hair when in the army as an authority. Thos. C. Smith v. Stanley Resor(Secretary of the Army) (1969).

26 Developing Gaines five point analysis (Gaines 1991:205).27 An interesting example of the transformation of the intellectual property was

the recent case of Flying Elvi v. Flying Elvises (unreported) in which two Elvisimpersonating skydiving teams fought ‘on behalf of anyone who wants to hit thesilk in the name of the King’ (Neill & Otey 1995:50). See Wall(forthcoming).

28 A copy of the letter dated 10/11/94 is available on the Elvis Home Page.29 All quotes from the letter dated 10/11/94.30 Cyber interview with Andrea Berman via e-mail.31 Ibid.32 Ibid.33 Interview with Sid Shaw, 3/2/95. An interesting observation about these

practices is that it basically depends upon which side one is on. To the client,they are seen as desirable whilst the defendant would see them as deliberatelyobstructive.

34 See, for example, Elvis in the 90s, and Elvis Monthly magazines produced by theOfficial Elvis Presley Fan Club of Great Britain or Elvisly Yours produced by theElvisly Yours fan club.

35 Most of the appreciation societies organize trips to and tours of Graceland,

140 D. Wall

Tupelo and other ‘Elvis’-related places, such as Bad Neuheim where he spenthis military service. They also hold annual conventions such as the Annual ElvisConvention held at Pontin’s in Hemsby by the Official Elvis Presley Fan Club ofGreat Britain.

36 In the light of the Lugosi case, the establishment of Clayton Moore’s descendiblerights might provide some interesting developments in the debate over definingthe boundaries of the rights to publicity.

Cases

Boxcar Enter. v. Lancaster (1983) Shelby Equity No. 16, mem. op. at 2-3 (Tenn. Ct.App. Dec. 5).

Commerce Union Bank (full title — Commerce Union Bank v. Coors of the Cumberland,Inc. (1981) 7 Media L. Rep. (BNA) 2204.

EPE v. Elvisly Yours — (full title Elvis Presley Enterprises Inc., v. Elvisly Yours, Inc., aTennessee Corporation, Sid Shaw, individually, Elvisly Yours, Ltd.) (1987) 817 F.2d104, (1991) 936 F.2d 889.

EPIMF v. Crowell — (full title The State of Tennessee, Ex Rel. The Elvis PresleyInternational Memorial Foundation, and The Elvis Presley International MemorialFoundation, v. Gentry Crowell, Secretary of State, The Elvis Presley Memorial Foundation,Inc., and Elvis Presley Enterprises, Inc.) (1987) 733 S.W.2d 89.

Estate of Presley, A655 (Shelby County) became Parker v. Hanks, 82-1719. after beingmoved to a Nevada federal court.

Factors etc. Inc. v. Creative Card Co. (1977) 444 F. Supp. 279.Factors etc. v. Pro-arts — (full title Factors etc. Inc. & Boxcar Enterprises Inc. v. Pro-arts

Inc. and Stop and Shop) (1977) 444 F.Supp. 288, (1978) 579 F.2d 215, (1979) 440U.S. 908, (1980) 496 F.Supp. 1090, (1981) 652 F.2d 278, (1982) 456 U.S. 927,(1983) 701 F.2d 11, (1983) 562 F. Supp. 304.

Flying Elvi v. Flying Elvises (1995) (unreported).Jo Lavern Alden v. Vernon E. Presley (Executor. Elvis Presley Estate) (1982) 637 S.W.2d

862.Lancaster v. Factors Etc. Inc. (1982), 9 Media L. Rptr. 1109.Lugosi v. Universal Pictures Inc. (1979) 25 Cal.3d 846.Memphis Development Foundation — (full title Memphis Development Foundation v.

Factors, etc., Inc.) (1977) 441 F.Supp. 1323, (1978) 578 F.2d 1381, (1980) 616 F.2d956.

North Carolina State Treasurer v. City of Asheville (1983) 300 S.E.2d 283.Presley v. City of Memphis (1988) 769 S.W.2d 221, (1989) LEXIS 114.Presley v. County of Nassau (1990) 148 Misc 2d 125.Presley v. Russen — (full title Estate of Elvis Presley v. Rob Russen, d/b/a The Big El Show)

(1981) 513 F. Supp. 1339.RCA Records v. Hanks (1982) 548 F. Supp. 979, and (1983) No. 81 Civ. 6594

(RLC).Thos. C. Smith v. Stanley Resor (1969) 406 F.2d 141.

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