Big Hunk A' Love? Not from the King

More like a hunk of liability in Presley publicity rights case against Beretta

Ben Franklin, certainly. Abe Lincoln, sure. But the King? Not so fast, gunslinger.

Recently, the estate of Elvis Presley accused Italian gunmaker Fabbrica d’Armi Pietro Beretta SpA of using the name and likeness of the legendary rock-and-roller and gun enthusiast to sell a new line of Beretta shotguns. The lawsuit is based primarily on the estate’s claim that Beretta violated Elvis’ post mortem publicity rights.

Filed in a Tennessee court, the case raises again — and not from the dead! — the concept of an individual’s rights of publicity. And it demonstrates to commercial enterprises yet another area of potential liability when using even an ersatz likeness of a famous, even deceased individual.

As the reader surely appreciates, Elvis is an American cultural icon, and his fame extends to multiple impersonators adopting his likeness and imitating his moves, from New York’s Times Square to Hollywood’s Walk of Fame. These imitators are small game indeed for a right of publicity suit, most probably out-of-work actors with little to no commercial upside at stake. But the Italian gunmaker may have taken the concept of a fair use homage to the King a little too far.

The Presley estate claims that Beretta created an entire unauthorized Elvis-themed advertising campaign for its new Beretta 692 competition shotgun, exploiting the fact that Elvis was a well-known Beretta owner. Allegedly, the campaign included appearances by Elvis impersonators at Beretta launch events. In addition, the suit claims that Beretta created advertising posters that featured a performer appearing to be Elvis using the new 692 model, wearing a typical Elvis-style jump suit, a shooting vest and ear protectors typically used by target shooters.

Unlike trademarks and copyrights, the right of publicity is not created by federal statute but instead is created by the laws of each individual state. These state laws vary markedly in what they protect, but the tendency in most states is to recognize a general right for a person to control the commercial use of his or her name, likeness, and other aspects of “personal identity.”

Not surprisingly, these state laws are inconsistent. For example, the right of publicity is written into the New York Civil Rights statute; significantly, it extends not only to celebrities or others in the public eye but to any person in the State of New York. But under New York law, once a person is dead, they have no more right of publicity.

In California, the right of publicity statute covers largely the same conduct as in New York but can also protect the rights of the deceased, famous or not. The California statute allows the heirs or survivors of a deceased “personality” to control that person’s right of publicity for fifty years after death, provided that the heirs register with the California Secretary of State’s Office and pay a fee. Even without filing the necessary paperwork, the heirs of a deceased person in California can still enjoin unauthorized uses of that individual’s personal identity, though they cannot recover monetary damages until they have complied with the statutory formalities.

Other states go even further. Indiana and Oklahoma protect the right of publicity for 100 years after someone’s death. Tennessee, home of Elvis, recognizes the right of publicity in perpetuity, so long as the right continues to be used for commercial purposes. Other states, such as Washington, provide a 10-year postmortem right for ordinary people but offer 75 years of protection for those whose images have “commercial value.”

It seems safe to assume that even the long-deceased may have enforceable rights of publicity somewhere. If your company is considering using a celebrity’s persona, image or likeness to support a commercial venture, and that person has not been dead for at least 100 years, you may want sooner rather than later to check on getting permission (from someone, somewhere!).

A final word to the wise: Be careful to obtain permission from all the proper parties. In one recent case, a corporation licensed the rights to make life-size robotic replicas of the characters “Norm” and “Cliff” from the television series “Cheers.” Even though the copyright owner of the show granted permission, George Wendt and John Ratzenberger, the actors who portrayed the fictional characters, brought a successful action for violation of their rights of publicity under California law.

Such wide-ranging and inconsistent state policies have spurred the discussion about creating a single, unified, federal right of publicity statute that could eliminate the confusing inconsistencies currently existing between the various state laws. No such change is expected anytime soon, however. Until or unless such a thing happens, the prudent company has only two options: master the byzantine laws of all fifty states or get those signed releases. You don’t want to draw unfriendly fire for using a deceased celebrity in your advertising campaign.

Contributing Author

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Scott Slavick

Scott Slavick is a shareholder at Brinks Gilson & Lione, where his practice focuses primarily on trademark prosecution and trademark litigation. Scott maintains all aspects...

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