The licensing company that controls the name and image of Elvis Presley is ordering Las Vegas’s wedding chapels to immediately cease and desist from using Elvis impersonators in their ceremonies. The operators of these chapels say the order could destroy their livelihoods.
It’s been going on for decades; why are they only now choosing to care about this? Aren’t enough businesses struggling in this country?
I wonder if Scientology is behind it, via Lisa Marie.
If Elvis were still alive, I’d blame the soaring cost of prescription drugs.
Question for the legal types: Does the fact that the Elvis Estate hasn’t bitched about the chapels for decades give them whatever the version of “adverse possession” there is on likenesses and such?
That is probably it right there. The company that owns the name and image is struggling (like everyone else) and doesn’t want to allow any more free use of the name. I’m sure they’ll be willing to negotiate a settlement with these Las Vegas chapels as long as they get a nice big juicy cut of the profits.
It seems more likely that they could argue “fair use” under the thesis that such presentations are obvious parodies in a long established tradition of such portrayals in television, film, theater, et cetera. I mean, who are they going to go after next? Kurt Russell and Kevin Costner?.
Stranger
Probably. Any claim would presumably be on the basis of trademark, but in order to hold on to a trademark, you have to defend it. The chapels would just have to demonstrate to the court a long history of not defending the trademark, and they’d win.
The catch there is “to a court”. Lawyers are expensive, and so threats of legal action can be a game of chicken. If don’t think the other side is going to swerve, there’s a strong incentive for you to swerve, so as to avoid the court costs entirely.
What do you mean IF?
An odd little piece of movie trivia, Kurt Russell made his movie debut kicking Elvis in the shin.
Could the chapels request a single hearing/trial and all contribute to the cost?
NOOOOO!!!
We got married at a drive thru wedding chapel with an Elvis. Then we spent the night in a 1980’s honeymoon suite with a heart shaped bed and satin sheets. It was decorated in reds and pinks and flounces and was tacky as only that era could be.
Everyone deserves to be able to enjoy something like that if they want to, we thought it was great and still have no regrets.
There wouldn’t be that many costs. Dozens of lawyers in Greater Las Vegas would handle it pro bono just for the advertising value.
And this, just as the Elvis movie is coming out.
I believe the term you are thinking of is Laches. Then again, I’m not an intellectual property lawyer, so that’s just general terminology.
A likeness isn’t just protected by trademark; it is also protected through publicity law in many states, particularly if you are not a famous person who might be defending your image and likeness as a business trademark. Many states protect the appropriation and use of likeness even if it isn’t considered intellectual property as a means of protecting privacy, preventing misrepresentation and identity theft, or adverse publicity. Whether you could really apply this to a long-deceased public figure (deceased people don’t generally have a recognized right to privacy although attorney-client privilege survives death) is in question but there are multiple legal avenues for the estate to claim his likeness has been appropriated without permission and just compensation.
Who would ‘win’ in such a case is in question; it is almost certain that the cultural relevance of Elvis Presley has long exceeded his general popularity in music and his, uh, films through such satirical memes as “Elvis has left the building” and fictional portrayal in media and as an officiant in ceremonies, so it may actually be the case that far from detracting from any trademark issues the Elvis Presley estate has actually benefited from such publicity. Certainly Presley is more recognizable to the generation who came after his heyday than contemporaries like Jerry Lee Lewis (still alive, to my surprise) or Chuck Berry, so a credible argument could be made that all of these imitators have kept Presley’s ‘value’ active.
In the end, I doubt that anyone is going to shut these chapels down because the expensive of pursing claims and the dearth of reward wouldn’t make it worthwhile. More than likely the estate is just applying pressure to establish some kind of compensation for use of likeness and everyone will go on perpetuating a caricature of a once-talented performer past his prime.
He has also played Elvis or and Elvis impersonator in three different films (just by voice in Forrest Gump but it still counts in my book).
Stranger
Sure, Elvis’s likeness still has value. Which doesn’t change the fact that the estate hasn’t been defending their rights. Whether they benefit is irrelevant.
It is relevant because key to an intellectual property claim is the issue of harm to reputation or financial interests. The essential basis for “fair use” is that a use that is recognized as parody does not detract from legitimate use by the trademark holder or loss of reputation (nobody confuses the Spitting Image puppet of Ronald Reagan for the real thing), and as such it is protected speech.
Defending or asserting rights is not the cut and dried issue you may believe it to be. There is a lot of litigation the estate could engage in but lacking an ability to show actual harms or that the use of Elvis’ likeness has done anything but actually uphold his public appeal actually undermines any such argument.
Stranger
Trademark needs to be defended regularly or it is lost. Copyright, however, has no such restrictions. Looking at other forms of IP isn’t going to give a legal answer.
The place to start is Nevada’s Right of Privacy law. To a non-lawyer, the impersonators don’t have a leg to stand on and wiggle suggestively.
Invasion of Privacy – Appropriation (AKA Right to Publicity)
- Introduction
If the person who posted a victim’s private, intimate images without the victim’s consent is deriving a commercial use from the material, the victim may sue that person under Nevada’s right to publicity statute.
- Text of the StatuteNev. Rev. Stat. § 597.790“1.
There is a right of publicity in the name, voice, signature, photograph or likeness of every person. The right endures for a term consisting of the life of the person and 50 years after his or her death, regardless of whether the person commercially exploits the right during his or her lifetime.”1Nev. Rev. Stat. § 597.810“
- Any commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use is subject to:
(a) Injunctive relief to prevent or restrain the unauthorized use; and
(b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:
(1) Actual damages, but not less than $750; and
(2) Exemplary or punitive damages, if the trier of fact finds that the defendant knowingly made use of the name, voice, signature, photograph or likeness of another person without the consent required by NRS 597.790.”2
Uh-huh-HUH! 
So presumably the chapels would be free to offer their services again once 2027 rolls around?
Maybe they could switch to Buddy Holly and the Big Bopper in the meantime.
Stranger