When copyright is king

There’s an old line that one of the perks of the job for lawyers who look after the estates of dead people is that their clients aren’t around to tell them what to do. It came to mind last week when it was revealed that Elvis Aaron Presley may have roots in the village of Lonmay, Aberdeenshire, where one Andrew Presley was born before he sailed across the pond to the United States in 1745.

It was a story which inevitably tempted sad men in ill-fitting wigs and white jumpsuits to the scene, and invited speculation that the village could become somewhere the King’s fans might want to visit. Maybe the local bed-and-breakfast could change its name to the Heartbreak Hotel?

Elvis spent only two hours of his life in Scotland (that famously brief stop-off at Prestwick Airport), but might have been slightly tickled by the idea of his fame being marked in the rather backwater location from where his forefathers came. He came from Southern poor white trash, but was always proud of his family and his roots.

In any event, it has now been decreed that no such thing will ever happen by lawyers for the Elvis estate. They greeted the happy news of their deceased client’s Scottish connection with their customary heavy-handed copyright warning.

Within 24 hours of the discovery, Elvis Presley Enterprises had issued a reminder that it owns all the intellectual property (IP) rights in his name, his image and his songs, including the trademark of the very words Heartbreak Hotel.

To any lawyer who works in IP, this is not what you could call news. Over the past 20 years, Elvis has become something of a case study in defending artistic rights, as the company has not only enforced the laws vigorously but has even managed to change them - in its favour.

It has closed a nightclub named Velvet Elvis, ordered a fan website to take down a virtual tour they had created of Graceland, and is currently trying to block the development of an Elvis Dream Home on a site where he spent his honeymoon.

Even the vast number of (good and bad) Elvis impersonators don’t escape its wrath.

Elvis Presley Enterprises is also credited with lobbying for laws to be passed which result in Tennessee now having the tightest copyright laws in the US, if not the western world. Only there can you enforce the "right to publicity" to prevent others using likenesses of someone - even if they are long dead.

They did lose out once in the UK, when the Court of Appeal threw out its attempt to close down Sid Shaw, a fan who marketed souvenirs under the title "Elvisly Yours". It was reassuring that an English court was not prepared to recognise that someone could "own" the image and name of someone who died more than a quarter of a century ago. But it took Mr Shaw a total of 12 years of litigation before his victory.

Elvis Presley Enterprises argues that it is enforcing the Presley IP rights because it doesn’t want his name or his work subjected to tacky exploitation. But one of Mr Shaw’s arguments was that he only began to produce his own ornaments when he visited Memphis and was appalled at the shoddiness of the goods on show.

Critics point out that the company is always prepared to allow someone to use the songs or the image if they pay for the right, and more money will be generated for the estate.

Two years ago, it allowed a DJ to remix the track A Little Less Conversation as a trailer for the release of a compilation CD that summer. The single went to No1 across Europe, and so did the CD. It’s as a result of business decisions such as these that Elvis is worth more now than he ever was alive.

The firm was back in court in the US in November to prevent the distribution of The Definitive Elvis, a high-quality documentary lasting 16 hours that attempted to cover his entire career in a DVD boxed set. It argued, successfully, that the documentary had used too much television footage of his songs. A 16-hour Elvis documentary which featured none of his songs would, of course, not have any of these copyright problems. But then again, it might get a bit dull.

The principles of intellectual property law, and the attempts to get around them, frequently throw up situations which appear to defy commonsense, and in London this spring we have a classic case in Jailhouse Rock, a musical based on the Elvis film. It will be about Elvis, but it won’t feature the actual song Jailhouse Rock, or indeed any other songs from the film.

While the lawyers fight on, the Elvis fans are the ones left scratching their heads and, who knows, in a supermarket somewhere, maybe there is someone wearing a white jumpsuit who is doing likewise.

As the appeal judge, Richard Tallman, put it, in the documentary judgment: "The King is dead. But his legacy, and those who wish to profit from it, remain very much alive."

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