## Facts

- Elvis Presley died in 1977; his name, likeness, and performance persona retained substantial commercial value.
- The Estate developed licensing and commercial programs to control and profit from the use of Presley’s identity.
- Rob Russen promoted and presented “The Big El Show,” a live theatrical production designed to imitate an Elvis Presley stage performance.
- The performer used Elvis-style costumes, gestures, mannerisms, and performance techniques intended to evoke Presley.
- Advertising and promotion used Presley-related indicia, including “The Big El Show” and references associated with Presley (e.g., “Elvis,” “Elvis Presley,” “Elvis in Concert,” “The King,” and “TCB”).
- The Estate alleged the show and its marketing created the impression of association, sponsorship, or endorsement by the Estate.
- The Estate sued asserting Lanham Act § 43(a) false designation/unfair competition, common law unfair competition and trademark infringement, and infringement of the right of publicity.
- The matter was before the court on the Estate’s motion for a preliminary injunction.

## Issues

1. Whether a celebrity’s right of publicity survives death and is enforceable by the celebrity’s estate.
2. Whether a concert-simulation show that copies a celebrity’s performance persona constitutes commercial appropriation infringing the estate’s publicity rights.
3. Whether the show’s title and promotional use of Presley-related names and indicia likely caused consumer confusion as to sponsorship, endorsement, or affiliation under Lanham Act § 43(a) and related common law doctrines.
4. Whether the requested restrictions were consistent with free-expression interests given the show’s expressive elements.
5. Whether the preliminary-injunction factors supported injunctive relief.

## Decision

- The court granted the Estate’s motion for a preliminary injunction in substantial part.
- The court found a strong likelihood that the Estate held an enforceable, post-mortem right of publicity in Presley’s name, likeness, and persona.
- The court found the show’s presentation and marketing appropriated Presley’s identity for commercial gain without authorization, supporting a publicity-rights violation.
- The court found the defendant’s conduct was likely to confuse the public about sponsorship or approval, supporting relief under Lanham Act § 43(a) and parallel common law theories.
- The injunction barred use of specified Presley-related names, likenesses, and indicia in connection with the defendant’s goods, promotional materials, advertising, and musical services, and barred other acts likely to cause mistaken beliefs of Estate authorization.
- The court concluded the injunction was justified despite expressive considerations because the conduct at issue functioned primarily as commercial exploitation and the relief targeted misleading commercial use.
- The court found the Estate showed likelihood of success, irreparable harm from loss of control over valuable identity-based goodwill and confusion, and a balance of hardships favoring the Estate.

## Legal Principles

- The right of publicity protects a person’s ability to control the commercial use of name, likeness, and identity; it functions as a property-like right that may be licensed and assigned.
- A post-mortem right of publicity may be recognized as descendible and enforceable by the decedent’s estate when the identity has ongoing commercial value.
- Copying a famous performer’s recognizable persona in a commercial entertainment product, when used to trade on the performer’s identity value, can constitute actionable appropriation even without using a literal name or photograph.
- Lanham Act § 43(a) prohibits uses in advertising and promotion that are likely to cause confusion about origin, sponsorship, endorsement, or affiliation, including confusion created by a show’s title and overall marketing presentation.
- Preliminary injunctive relief may issue where the plaintiff shows likelihood of success, irreparable harm from loss of control over goodwill and consumer confusion, and equities favoring restraint of misleading commercial conduct.

## Conclusion

The court enjoined substantial aspects of “The Big El Show” because the Estate demonstrated a strong likelihood that the production and its marketing commercially appropriated Elvis Presley’s post-mortem publicity rights and created likely consumer confusion about Estate sponsorship or endorsement under Lanham Act § 43(a) and related common law claims.


Estate of Presley v. Russen, 513 F. Supp. 1339 (D.N.J. 1981)