Elvis Presley's career is without parallel in the entertainment industry. From his first hit record in 1954 until his death in 1977, he scaled the heights of fame and success that only a few have attained. His twenty-three year career as a recording star, concert entertainer, and motion picture idol brought him international recognition and a devoted following in all parts of the nation and the world.'
In examining the right of publicity, a principle that recognizes an individual's exclusive right to commercially exploit his or her own name and likeness, the laws of three jurisdictions come to the forefront as providing the most influential authority on the doctrine - New York, California, and Tennessee. Given that the right of publicity is commonly associated with and asserted by celebrities, who are most likely to be able to profit from their personalities, the credence given to the treatment of the doctrine in states with high concentrations of the rich and famous, such as New York and California, is not surprising. In terms of sheer numbers of famous citizens, Tennessee is certainly the outlier of the three, even considering the country music Mecca that is Nashville. Upon consideration, however, of those celebrities with the most interest in protecting their images - that is, celebrities with the most distinctive, most recognizable, and most marketable personas - the respect for Tennessee's jurisprudence on the right of publicity becomes imminently understandable, as Tennessee's courts and legislators were entrusted with the protection of perhaps the largest personality of all - Elvis Presley.
In contrast to New York and California, whose law developed from litigation involving many different celebrities, some beloved and others less so, Tennessee's most influential right-of- publicity cases involve the estate of Elvis Presley, resulting in a body of law that sprang from the efforts to protect the rights of one man. This singular purpose led to distinctive protections not previously seen in other states and placed Tennessee on the cutting edge of the advancement of the doctrine. Thus, Tennessee's esteemed jurisprudence on the right of publicity is not simply a historical accident resulting from the fact that Elvis lived in Memphis; rather, the whole of that jurisprudence is derived from a desire to protect the identity of Elvis and his exclusive rights in that identity. In other words, Tennessee's right of publicity was not just developed because of Elvis, it was developed for Elvis. This loyalty of Tennessee jurists and lawmakers is likely due not only to the undeniably immense value of Elvis's persona, but also to his association with the state of Tennessee and, in particular, his adopted hometown of Memphis.
This Article analyzes the development of Tennessee law on the right of publicity and Elvis's influence on that development. Part II traces the origins of the doctrine and highlights the different interests and protections afforded in different jurisdictions. Part III provides a brief overview of Elvis's popularity in popular culture in general and the nation's jurisprudence in particular. Part IV focuses on the cases and statutes that developed and now govern the right of publicity in Tennessee. Part V explains the role that Elvis and his estate played, both directly and indirectly, in the formation of that law and discusses the reasons Elvis was so influential to Tennessee's approach, concluding that the particular brand of the right of publicity recognized in Tennessee is a direct result of the particular personality at issue, with the lasting legacy of Elvis Presley firmly imprinted on the law of this state.Christoff goes on to comment
The General Assembly enacted the "Personal Rights Protection Act of 1984," which provides that "[e]very individual has a property right in the use of that person's name, photograph, or likeness in any medium in any manner." That the statute creates a property right that continues after the death of the individual and is descendible is made clear in multiple provisions. First, the term "individual" is defined as "human being, living or dead." The statute also reite- rates that the rights created are "property rights" that "are freely assignable and licensable, and do not expire upon the death of the individual so protected, whether or not such rights were commercially exploited by the individual during the individual's lifetime, but shall be descendible to the executors, assigns, heirs, or devisees of the individual so protected by this part." The rights are "exclusive to the individual ... during such individual's lifetime and to the executors, heirs, assigns, or devisees for a period of ten (10) years after the death of the individual." The statute does not actually limit its protection to ten years, however; so long as the assignee of the rights continues to use the individual's name, likeness, or image for commercial purposes, the rights exist in perpetuity. Following the initial ten years of unconditional protection, non-use for a period of two years will result in termination of the exclusive right.' In addition to the General Assembly's efforts to ensure that the right of publicity was not extinguished at death in Tennessee, the Tennessee Court of Appeals confirmed the descendibility of the right under the common law as well.
The imprint of Elvis on Tennessee's law on the right of publicity is undeniable, and there are several reasons for that imprint. First, of course, as discussed above, Elvis was on the courts' minds in defining the right of publicity because Elvis was literally on their dockets. With the sole exception of the Commerce Union Bank case, each of the formative decisions establishing the standard for the right of publicity under Tennessee common law involves a case where the Presley estate, or its assigns, was one of the parties.' It is surely understandable that the courts seeking to determine what rights a celebrity has to the exclusive enjoyment of his persona would be influenced by the very persona they were deciding whether to protect. That singularity of purpose is perhaps also a reason that Tennessee's version of the doctrine is considered so strong when compared to that of other jurisdictions.'
Second, Elvis's involvement in the development of the law appears to have been an intentional tactic employed by his estate. It is no accident, for example, that the Tennessee statute has such a purposeful focus on establishing that the rights created therein are descendible, which would obviously be of benefit to Elvis's estate, as Elvis was already deceased when the law was passed. Known as "Elvis law,"' the statute was sponsored by the Presley estate. Both the estate and Elvis Presley Enterprises have also aggressively pursued litigation to enforce their intellectual property rights, in many instances forcing the courts to forge into new areas of the law with previously imprecise doctrines. "The Estate of Elvis Presley succeeded on both the legal and legislative fronts in garnering rights in the Presley image."
Finally, particularly in the province of judicial decisions, the landscape of Tennessee's law on publicity rights was likely formed with a subconscious intention of protecting Elvis as the jurisdiction's dearest natural resource. As discussed, the theoretical justifications for publicity protection, though numerous, are conceptually suspect. In the absence of a concrete foundational theory, the choices made in drawing the boundaries for the right of publicity doctrine were left to largely provincial concerns; indeed, perhaps it is precisely because there is no strong theoretical basis for the right of publicity that those boundaries are drawn so differently from jurisdiction to jurisdiction. For Tennessee, and Memphis in particular, that concern was protection of Elvis, the favorite son-not just protection of his image, that it remained un- sullied, or protection of the interests of his only heir, Lisa Marie, who was under ten years old when her father died, but also protection of the community's pride in its association with Elvis and the economic advantage to be reaped from that relationship. In other jurisdictions, where the celebrities are more numerous, or less be- loved, or both, those concerns are not as great and the resulting protection not as strong."' As much as Elvis is a product of his environment, so is Tennessee's right of publicity a product of Elvis.