616 F.2d 956 (6th Cir. 1980)
Elvis Presley died in Memphis on August 16, 1977.1 Prior to his death, Presley had conveyed the exclusive right to exploit the commercial value of his name and likeness to Boxcar Enterprises in exchange for royalties, with Colonel Tom Parker owning 56% of the shares, Presley owning 22%, and Tom Dishkin owning 22%.2 Two days after Presley’s death, Boxcar sold a license to use its rights to Factors Etc., Inc. for $150,000, and Presley’s father agreed to the sale on behalf of Elvis’ estate.3
The Memphis Development Foundation, a Tennessee nonprofit corporation, laid plans to erect a large bronze statue of Presley in downtown Memphis to honor him and solicited public contributions to pay for the sculpture, with donors of $25 or more receiving an eight-inch pewter replica of the proposed statue.4 The Foundation instituted this action seeking a declaratory judgment that Factors’ license does not preclude distribution by the Foundation of the pewter replicas and that the Foundation has the right to erect the Presley statue.5
Factors in turn filed a counterclaim seeking damages and an injunction against further distribution of the replicas by the Foundation.6 Factors claims that the Foundation is selling the statuettes for $25 apiece and thus appropriating Factors’ exclusive right to reap commercial value from the name and likeness of Elvis Presley.7
The District Court issued an injunction against the Foundation that allows the Foundation to build the Presley memorial but prohibits it from manufacturing, selling or distributing any statuette bearing the image or likeness of Elvis Presley, or utilizing commercially in any manner or form the name, image, photograph or likeness of Elvis Presley.8
Whether, under Tennessee law, the exclusive right to publicity survives a celebrity’s death?9
Under Tennessee law, the exclusive right to publicity does not survive a celebrity's death and is not inheritable, even where the celebrity has exploited the right by contract during life.10
No. The court held that the right of publicity is not inheritable under Tennessee law.11 Although Presley had exploited his right by contract during his lifetime by conveying it to Boxcar Enterprises, this does not make the right devisable after death.12 The court found that policy considerations, including the public interest in access to fame and the practical problems of line-drawing, outweigh any potential motivational benefits from allowing heirs to inherit the right.13
The exclusive right to publicity does not survive a celebrity's death under Tennessee law.14