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

ILN IP Insider

James P. Flynn, Managing Director of the Firm and Member in the Litigation and Employment, Labor & Workforce Management practices, in the firm’s Newark office, authored an article in ILN IP Insider, titled “The King Is Dead! Long Live The King!: Elvis Sightings, Taking Care of Business, and Rights of Post-Mortem Publicity.”

Following is an excerpt:

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. …