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Factors Etc., Inc. v. Pro Arts, Inc


    Citation. Factors Etc., Inc. v. Pro Arts, Inc., 1982 U.S. LEXIS 1719, 456 U.S. 927, 102 S. Ct. 1973, 72 L. Ed. 2d 442, 50 U.S.L.W. 3838 (U.S. Apr. 19, 1982)

    Brief Fact Summary. Plaintiff owned the rights to an exclusive license to exploit Elvis Presley. On Presley’s death, Defendant produced a poster of Presley. Plaintiff sued Defendant for commercial appropriation.

    Synopsis of Rule of Law. The death of a party does not preclude any action for the right of publicity for that person’s identity.


    Facts. Factors (Plaintiff) had the rights to an exclusive license to commercially exploit the name and likeness of Elvis Presley. Plaintiff had paid $100,000 for the license. Immediately upon learning of the death of Elvis, Pro Arts (Defendant) purchased a photo from a staff reporter of the Atlanta Journal, and published that picture on a poster with the words “IN MEMORY” and below were the dates “1935-1977.” Plaintiff learned of the poster, sued Defendant and got a preliminary injunction. Defendant was prohibited from manufacturing, selling, or distributing the poster. Defendant appealed the injunction.

    Issue. Does the death of a party preclude any action for the right of publicity for that person’s identity?

    Held. No. Judgment affirmed.
    * The death of a party does not preclude any action for the right of publicity for that person’s identity. There is no doubt that Plaintiff owned an exclusive right to print, publish and distribute Elvis Presley’s name and likeness. To hold that the right did not survive Presley’s death, would be to grant competitors of Plaintiff, such as Defendant, a windfall in the form of profits from the use of Presley’s name and likeness.
    * Defendant’s contention that the poster is privileged as a newsworthy event is without merit because it is a commercial exploitation of Presley’s death.

    Discussion. The right to publicity survives

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