Factors Etc., Inc. v. Pro Arts, Inc.
579 F.2d 215 (1978)
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Rule of Law:
A celebrity's right of publicity, when exploited during their lifetime, constitutes a transferable property right that survives their death and can be assigned to others.
Facts:
- During his career, Elvis Presley, with his manager Colonel Tom Parker, capitalized on marketing merchandise bearing his name and likeness.
- Presley and Parker controlled a corporation, Boxcar Enterprises, Inc. (Boxcar), which was the exclusive vehicle for marketing commercial rights related to Elvis Presley.
- Elvis Presley died on August 16, 1977.
- Two days after Presley's death, on August 18, 1977, Boxcar granted Factors Etc., Inc. (Factors) an exclusive license to commercially exploit the name and likeness of Elvis Presley.
- Presley's father, as executor of the estate, signed the agreement with Factors, warranting that Boxcar was the sole owner of these commercial rights.
- Three days after Presley's death, on August 19, 1977, Pro Arts, Inc. (Pro Arts) purchased the copyright to a photograph of Presley.
- Pro Arts then published and began marketing a poster titled "IN MEMORY" featuring Presley's photograph and the dates "1935-1977".
- Pro Arts sold these posters to various retailers, including Stop and Shop Companies, Inc. (Stop and Shop).
Procedural Posture:
- Pro Arts, Inc. first filed suit in the U.S. District Court for the Northern District of Ohio, seeking a declaratory judgment that its poster did not infringe on any rights.
- Five days later, Factors Etc., Inc. and Boxcar Enterprises, Inc. sued Pro Arts, Inc. and Stop and Shop Companies, Inc. in the U.S. District Court for the Southern District of New York, seeking an injunction and damages.
- Pro Arts filed a motion in the New York action to dismiss, stay, or transfer the case to the Ohio court.
- The U.S. District Court for the Southern District of New York denied Pro Arts' motion and granted a preliminary injunction restraining Pro Arts from manufacturing, selling, or distributing the Presley poster.
- Pro Arts, the defendant-appellant, filed an interlocutory appeal of the district court's order to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does a celebrity's right of publicity survive their death, allowing their exclusive licensee to enjoin others from commercially exploiting the celebrity's likeness?
Opinions:
Majority - Ingraham, Circuit Judge
Yes, a celebrity's right of publicity survives their death. The right of publicity is a transferable property right, distinct from the personal right of privacy, and because Elvis Presley exploited this right during his lifetime, it did not extinguish upon his death. The court reasoned that the right of publicity is not based on preventing injury to feelings, which logically ends at death, but on preventing the unjust enrichment from the theft of goodwill. It is a commercial interest analogous to patent or copyright law. Citing Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., the court affirmed that the right of publicity is an assignable property right. Because Presley had assigned this exclusive right to Boxcar, creating an intangible property interest, his death did not extinguish Boxcar's right; rather, the income interest from that right inured to his estate. Finally, the court rejected Pro Arts' argument that its poster was privileged as a newsworthy event, holding that the "IN MEMORY" poster was a commercial product, not a form of protected commentary.
Analysis:
This decision was a significant step in establishing the right of publicity as a descendible property right, distinct from the non-descendible personal right of privacy. It created a valuable posthumous asset for the estates of celebrities who had commercially exploited their persona during their lifetime. The ruling provided a legal framework for the licensing and control of a deceased celebrity's image, profoundly impacting intellectual property law and the entertainment industry. The court's limitation of its holding to cases where the right was exploited during life left open the question of whether an unexploited right of publicity would also survive death.
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