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

579 F.2d 215 (1978)

Quick Summary

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Factors Etc., Inc. (plaintiff) held exclusive rights to Elvis Presley’s image, which Pro Arts, Inc. (defendant) infringed upon by publishing a memorial poster after Presley’s death. The dispute centered on whether these rights endured past Presley’s death and whether Pro Arts’ poster was protected speech.

The Court of Appeals confirmed that such rights do survive death and are not nullified by claims of newsworthiness in commercial products, thus upholding Factors’ exclusive rights and affirming the preliminary injunction against Pro Arts.

Facts of the Case

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Factors Etc., Inc. (plaintiff) acquired exclusive rights to exploit the name and likeness of Elvis Presley from Boxcars, Inc., which was controlled by Presley and his manager, Colonel Tom Parker. Upon Presley’s death, Pro Arts, Inc. (defendant) published a poster featuring Presley’s image with the words ‘IN MEMORY,’ prompting Factors to demand cessation of its marketing, asserting their exclusive rights.

Pro Arts filed a declaratory judgment action, while Factors filed a separate suit, successfully obtaining a preliminary injunction against Pro Arts, which was then appealed by Pro Arts to the United States Court of Appeals for the Second Circuit.

Procedural Posture and History

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  1. Pro Arts published a poster of Elvis Presley without authorization from Factors, who held exclusive rights.
  2. Factors obtained a preliminary injunction in a lower court to stop Pro Arts from distributing the poster.
  3. Pro Arts appealed the decision to the United States Court of Appeals for the Second Circuit.

I.R.A.C. Format


Issue Icon

Whether the exclusive right to commercially exploit a celebrity’s name and likeness survives the celebrity’s death and whether such a right prohibits others from distributing memorabilia commemorating a newsworthy event.

Rule of Law

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The right of publicity, which allows an individual to control and profit from the commercial use of their name and likeness, can be legally transferred and survives beyond death, providing continued commercial benefits to the deceased’s estate or assignees.

Reasoning and Analysis

Reasoning Icon

The court reasoned that since Elvis Presley had exploited his right of publicity during his lifetime by authorizing Parker and Boxcars to market his image, this right did not extinguish upon his death. Rather, it transitioned to his estate and could be legally assigned to Factors Etc., Inc.

The court found that allowing competitors like Pro Arts to profit from Presley’s likeness after his death would unjustly enrich them at the expense of Factors’ exclusive rights.

Furthermore, the court rejected Pro Arts’ argument that its poster was privileged as a newsworthy event, distinguishing it from cases where an individual’s actions make them a subject of legitimate public interest. The court concluded that Pro Arts’ use of Presley’s image was commercial in nature and not protected under First Amendment rights to report newsworthy events.


Conclusion Icon

The Court of Appeals affirmed the lower court’s decision, upholding the preliminary injunction against Pro Arts and recognizing Factors’ exclusive rights to Elvis Presley’s name and likeness.

Key Takeaways

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  1. The right of publicity is transferable and survives the death of the celebrity.
  2. A celebrity’s estate or assignees retain the right to control and profit from the commercial use of their name and likeness after their death.
  3. Commercial exploitation of a celebrity’s image without authorization from the rights holder is not protected by claims of reporting on a newsworthy event.

Relevant FAQs of this case

Is the right of publicity transferable inter vivos, and what effect does this have on commercial interests?

The right of publicity is indeed transferable inter vivos, meaning that a living individual can legally assign or license their right of publicity to another party. This transfer can have significant commercial implications as it allows the individual to monetize their image and likeness through endorsement deals, merchandise, and other forms of commercial activity.

  • For example: A famous athlete signs a contract with a sports apparel company, granting them the exclusive right to use their likeness on clothing and advertisements. Such an agreement is enforceable during the athlete’s life.

How do courts balance First Amendment rights against the right of publicity when a celebrity's image is used in a commercial product?

Courts typically employ a balancing test to assess whether the use of a celebrity’s image in a commercial product is permissible under the First Amendment. They evaluate the public interest in the speech versus the harm to the celebrity’s right of publicity. If the speech does not predominantly serve a public interest or if it is primarily commercial in nature, the celebrity’s right typically prevails.

  • For example: Suppose an unauthorized biography uses a celebrity’s photo on its cover. If it’s determined that the work is educational rather than merely profit-oriented, the use might be protected by the First Amendment.

Upon what principles do courts decide if a celebrity's right of publicity survives after their death?

Courts assess whether a state’s law provides for post-mortem rights and often look at factors such as whether the celebrity commercially exploited their image during life and made arrangements for these rights to continue after death. The principle upholds that if an individual invested in their persona while alive, the benefits should extend to heirs or assignees.

  • For example: A legendary musician who passed away had previously sold merchandise with his likeness. The musician’s appointed estate continues managing these rights, preventing unauthorized exploitation by third parties.


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