## Facts

- Elvis Presley and his manager, Colonel Tom Parker, commercially exploited Presley’s name and likeness through merchandising during Presley’s lifetime.
- Boxcar Enterprises, controlled by Presley and Parker, coordinated sublicenses for Presley merchandise and collected royalties.
- Presley died on August 16, 1977.
- On August 18, 1977, Boxcar granted Factors Etc., Inc. an exclusive license to commercially exploit Presley’s name and likeness; Factors paid substantial consideration for exclusivity.
- Shortly after Presley’s death, Pro Arts acquired a photograph of Presley and sold a poster bearing the image and the words “IN MEMORY” with the dates “1935–1977.”
- Factors demanded that Pro Arts stop marketing the poster; Pro Arts refused, asserting the poster was protected as a newsworthy publication and that publicity rights did not survive death.
- Factors and Boxcar sued Pro Arts and a retailer, Stop & Shop, seeking injunctive relief and damages for misappropriation and unauthorized commercial use of Presley’s identity.
- The district court granted a preliminary injunction, finding the right of publicity survived Presley’s death and the poster was commercial merchandising rather than privileged news.

## Issues

1. Whether a celebrity’s right of publicity in name and likeness survives death and may be enforced by an exclusive licensee against unauthorized commercial users.
2. Whether a memorial-themed poster sold for profit is privileged as a newsworthy publication about a celebrity’s death.
3. Whether the plaintiffs satisfied the requirements for a preliminary injunction, including likelihood of success on the merits and irreparable harm.

## Decision

- The Second Circuit affirmed the preliminary injunction.
- The court held the right of publicity in Presley’s name and likeness survived his death and was enforceable by Factors as exclusive licensee.
- The court rejected the newsworthiness defense, concluding the poster was commercial exploitation rather than protected reporting or commentary.
- The court found no abuse of discretion in the district court’s determination that plaintiffs showed a probability of success and irreparable harm absent injunctive relief.

## Legal Principles

- A right of publicity, when treated as a commercially exploited interest, may function as a transferable property-like right that can survive the celebrity’s death and be enforced by successors or licensees.
- Unauthorized merchandising that trades on the commercial value of a celebrity’s identity may be enjoined even if it references a public event such as the celebrity’s death.
- Adding commemorative language (e.g., “IN MEMORY” and dates) does not immunize an otherwise commercial product from liability for misappropriation.
- Preliminary injunctive relief is appropriate where the plaintiff shows a strong likelihood of success and irreparable harm, including loss of exclusivity and loss of control over a unique, monetized identity.

## Conclusion

The Second Circuit upheld injunctive protection for an exclusive licensee of Elvis Presley’s publicity rights, ruling that those rights survived Presley’s death and that a memorial poster sold for profit was commercial appropriation rather than privileged news.


Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978)