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“Elvis came into my life the year after he died,” says Mack Webner, a bearded, bearlike lawyer who specializes in intellectual property. His L Street office showcases the icons of his most famous client; it’s a little oasis of rock ‘n’ roll kitsch inside the vast, dry expanses of Washington law. (Webner is a partner in Vorys, Sater, Seymour and Pease, a firm that prides itself on being un-Washingtonian.) The King’s image radiates from a guitar-shaped clock. Against the wall leans a 2-foot-tall Presley doll, thin, sexy, and resplendent in a white jumpsuit: the young Elvis in the old Elvis’ clothes. Webner drinks from a mug emblazoned with Elvis’ name, and he offers a visitor a pack of Elvis bubblegum. Each gewgaw represents a legally protected use of Presley’s intellectual property—and thus a victory for Webner, and profits for Elvis Presley Enterprises Inc., the Graceland-based corporation that controls Presley’s image.
In 1978, the estate’s lawyers contacted Webner because they hoped to stop the sale of crayon rubbings taken from the gravestone of Elvis’ grandmother. Could the epitaph be copyrighted? they asked. Webner told them sure, that copyrighting was possible. And he suggested, with some urgency, that the estate take steps to protect a far greater asset: the rights to Elvis himself.
Familiar laws cover some of the King’s dominion. Copyrights protect works of art: For instance, publishing and performance copyrights to songs belong to the artists, but those rights can be sold or assigned. Trademarks cover a company’s name, logo, and any other symbol it uses to distinguish its products from competitors’. Thus, the word “Elvis” can be registered as a trademark.
But what about Presley’s entire persona? Do his heirs own the rights to his likeness, image, and voice, or did the essence of Elvis slip into the public domain when he died? Could a company—say, Xerox—employ a slick-haired, swivel-hipped impersonator in its ads without paying royalties to Presley’s estate?
Such questions involve Elvis’ “right to publicity,” a relatively uncharted patch of legal territory. That right stems from a 1902 Supreme Court decision in which the court ruled that a flour company had invaded the privacy of a pretty young woman by using her photo in flour ads without her consent. In 1977, the court built on that precedent, ruling that a TV station couldn’t, sans permission, broadcast the entire performance of a human cannonball; such a broadcast amounted to stealing the performer’s persona and thus violated his right to publicity.
The right to publicity encompasses much more than copyrights or trademarks. Personas can include voices: Tom Waits and Bette Midler have each invoked the right to squelch ads featuring blatant imitators. And in fact, personas can include almost any facet of well-known humanity: Vanna White successfully sued Samsung for a commercial in which a blond robot flipped Wheel of Fortune-style letters. The court ruled that blondness and letter-flipping constituted her persona, and that Samsung had hijacked it.
In 1981, Webner invoked the human-cannonball precedent in Estate of Elvis Presley vs. Russen, a New Jersey case that now stands as a minor legal landmark. An impersonator who billed himself as the “Big El” spent his entire 90-minute show delivering Presley standards in a Presley manner; the court ruled that by doing so, he violated Elvis’ trademark and right to publicity. As Webner reads the cannonball ruling, the case hinged on the Big El’s slavish copy of Elvis, in which he brought nothing new to the spotlight. Webner explains that an entertainer who strings together imitations of many different celebrities doesn’t need a license from each one; the lawyer calls this the “Rich Little exception.” Or an entertainer can, without permission, build upon Elvis’ persona to create something new. Under this exemption fall high-concept acts such as El Vez (the Mexican Elvis), and the dizzying Dread Zeppelin, a reggae band fronted by an Elvis clone who croons Led Zep covers.
Of course, it matters that Elvis is dead. The dead lose many of their legal rights; every greenhorn reporter knows that you can’t libel them. Webner contends that the Supreme Court’s expansion of rights of privacy into rights of publicity are flawed; he asserts that a distinctive performer is as commercially durable as a successful brand name of soap. He argues this point in a recent issue of the Trademark Reporter, the journal of the International Trademark Association, writing that if the right to publicity is treated like a trademark, then ownership of a persona doesn’t expire with the person who created it; instead, it can be sold or passed from heir to heir.
Whether a celebrity’s heirs can claim a piece of the posthumous action depends on the state that their benefactor called home. Webner laments that those state laws differ wildly: A New Yorker’s right to publicity is interred with the bones, but a Tennessean’s right lives in perpetuity, or at least as long as his heirs bother to renew their claims. The other states fall somewhere between these two extremes: Residents’ right to publicity expires at some point after the person’s death, much as the copyright on a song or a book eventually falls into the public domain, available free to anyone, for any purpose. Those state laws apply across state boundaries: Since Elvis resided in Tennessee, that state’s right-of-publicity law applies to his legacy.
Elvis Presley Enterprises has made the best of that good situation, aggressively merchandising the persona of its raison d’etre and guarding his intellectual property with vigilance. (Webner’s greatest hits include such delightful entries as Elvis Presley Enterprises vs. Elvisly Yours.) Carol Butler, the company’s director of worldwide licensing, rattles off a long list of official Elvis products and licensees: There’s a Hasbro doll, a Lenox charm bracelet, Franklin Mint collectible figurines, and Hallmark calendars, greeting cards and party packs. There exist official Elvis Christmas ornaments, an official model of his pink Cadillac, official ties, official telephone calling cards, official decorative pillows, official jigsaw puzzles and lithographs, and even official tin trading cards. (One wonders whether tin cards are ever traded, but such niggling matters do not detract from the cards’ officialness.) Presley Enterprises licenses impersonators on a case-by-case basis, for only one show at a time. And yes, says Butler, the company licensed both the U.S. Postal Service’s stamp and Honeymoon in Vegas‘ horde of parachuting pseudo-Elvi. Such is the world that Webner and others like him have wrought.
Webner, 52, escaped the first round of Elvis-mania through a combination of youth and down-to-earth Midwesternness. “Elvis and I weren’t exactly contemporaries,” the lawyer explains. “I was only in junior high when he was coming out. But I enjoyed his music.” Even now, Webner enjoys where others swoon. He says he intends to read Peter Guralnick’s much-reviewed Last Train to Memphis, but he hasn’t rushed to buy the biography. “I guess I’m not much of a group ie,” he allows.
Nowadays, a Memphis law firm handles day-to-day Elvis licensing matters, and Webner’s work for Presley Enterprises is mostly limited to registering trademarks here and abroad. The words “Elvis,” “Elvis Presley,” and “Graceland” have long been registered, but as the Presley empire sets out to conquer new countries, and as old countries add new categories to their trademark registries, the lawyer is called to action.
Maintaining Elvis’ trademark requires more work than most laymen would assume. For instance, Webner can’t simply secure the American trademark for “Graceland” in Class 25, the class for clothing. He must instead register the word in as many of the category’s subsets as might apply, garnering specific Graceland trademarks for socks, jackets, T-shirts, and on and on. Five years after a trademark is registered in the U.S., Webner must file an affidavit to prove that Presley Enterprises has placed a product on the market. Since the company must pay for all this legal activity, it doesn’t register trademarks in unpromising areas. Webner—a little breathless after listing subsets of the clothing category—sounds almost relieved to note that he hasn’t secured the Elvis brand name in the class that covers industrial chemicals.
Of course, the lawyer works for clients besides Presley Enterprises. Crammed among his Presley knickknacks are totems of other employers, past and present. A Charlie Chaplin poster hangs by the door, and a cardboard bust of James Dean exudes bad attitude from a windowsill. An envelope of Knorr’s onion soup perches jauntily alongside a jar of Skippy peanut butter, not far from the Mazola corn oil, the Hellman’s mayonnaise, and the Prince tennis racket.
A French semiotician might flinch on seeing the groceries, and reflect that we Americans reduce our celebrated dead to commodities, on a par with sporting goods and condiments. But Elvis was nothing if not American, and in this country the brand name is king. It’s only fitting that Mack Webner has worked to grant the King himself a kind of commercial immortality.