## Facts

- Elvis Presley, a Tennessee domiciliary, assigned to Boxcar Enterprises, Inc. exclusive commercial rights to use his name and likeness.
- Two days after Presley’s death, Boxcar granted Factors Etc., Inc. an exclusive, time-limited license to exploit Presley’s name and likeness in merchandising.
- Pro Arts, Inc. published and marketed an “In Memory” Elvis Presley poster using Presley’s photograph and the dates “1935–1977.”
- Stop & Shop Companies, Inc. sold Pro Arts’ posters at retail, including sales in New York.
- Factors and Boxcar sued in federal district court in New York under diversity jurisdiction, seeking to stop commercial use of Presley’s name and likeness and to enjoin manufacture and sale of the poster.
- After an earlier preliminary injunction was affirmed on the assumption that Tennessee law recognized a surviving publicity right, a later Sixth Circuit decision (in separate litigation involving the same claimed Presley publicity rights) predicted that Tennessee law did not recognize any post-mortem survival of that right.
- The district court nonetheless applied New York substantive law and granted summary judgment for Factors and Boxcar, issuing a permanent injunction against Pro Arts’ use of Presley’s name and likeness.
- Defendants appealed, arguing Tennessee law governed and, under the Sixth Circuit’s interpretation, no post-mortem publicity right existed.

## Issues

1. In a diversity case governed by Tennessee law, whether the Second Circuit should give conclusive deference to the Sixth Circuit’s prediction of Tennessee law absent authoritative Tennessee state-court guidance.
2. Under Tennessee law, whether Elvis Presley’s right of publicity survived his death as a descendible property right enforceable by assignees or licensees.
3. Whether the district court erred by applying New York law rather than Tennessee law to determine the existence and descendibility of the asserted publicity right.

## Decision

- The Second Circuit reversed the district court’s judgment and vacated the permanent injunction.
- The court held Tennessee law, not New York law, governed the existence and descendibility of Presley’s right of publicity.
- The court held that, absent contrary Tennessee authority, it would give conclusive deference to the Sixth Circuit’s prediction of Tennessee law because Tennessee lies within the Sixth Circuit.
- Accepting the Sixth Circuit’s construction, the court concluded that Tennessee law did not recognize a post-mortem right of publicity for Presley; therefore, plaintiffs lacked a surviving right to enforce against defendants’ poster sales.

## Legal Principles

- In diversity cases, federal courts apply the substantive law that state choice-of-law rules designate; the state with the dominant interest in defining the nature and descendibility of an asserted personal-property-like right supplies the governing law.
- When a state’s highest court has not spoken on a dispositive question, federal courts must predict state law consistent with Erie.
- A federal court of appeals should ordinarily give conclusive deference to another circuit’s prediction of the law of a state located within that other circuit, absent persuasive reasons or authoritative contrary state-court decisions.
- If the governing state law does not recognize a post-mortem, descendible right of publicity, assignees and licensees cannot enjoin third parties’ post-death commercial use of the decedent’s name or likeness on that theory.

## Conclusion

The Second Circuit held that Tennessee law controlled and, deferring to the Sixth Circuit’s prediction of Tennessee law, ruled that Presley’s right of publicity did not survive his death; the permanent injunction against defendants’ memorial poster was therefore reversed and vacated.


Factors Etc., Inc. v. Pro Arts, Inc., 652 F.2d 278 (2d Cir. 1981)