The Wonder of Two: Elvis Presley's Influence on Tennessee's Common Law and Statutory Postmortem Rights to Publicity

Introduction

Tennessee recently took a large, perhaps crucial step to meet the ever-changing legal landscape surrounding Artificial Intelligence (AI). In 2024, Tennessee Governor Bill Lee signed the Ensuring Likeness, Voice, and Image Security Act (the ELVIS Act). The law offers expansive protections for a living or dead person’s name, image, likeness, and voice. Named for perhaps Tennessee’s most famous pop culture figure, the ELVIS Act built upon the foundation provided by the Personal Rights Protection Act of 1984, which first gave statutory teeth to protecting a person’s right to publicity, even beyond the grave. The ELVIS Act’s protections include liability for media entities that publish or create unauthorized uses of the person’s publicity right. Many regard this provision as an attempt to target AI companies whose softwares can make such fraudulent reproductions.

But while the Tennessee General Assembly has created statutory protections for the postmortem right to publicity, Tennessee state courts have found an independent common law protection for the same right. Ironically, or perhaps fittingly, the legacy of the King of Rock and Roll, Elvis Presley, led the courts to add to the General Assembly’s moat.

While a federal district court held that the statutory protections offered by the Tennessee General Assembly supplanted the common law protections, this Case Note argues that such a conclusion is not so simple. Instead, the timing and text of a key Tennessee appellate court opinion, as well as the text of the Tennessee statutes, indicate that the common law and statutory protections could comfortably coexist. In other words, the statutory postmortem right of publicity does not have to “walk alone.” Tennessee’s arrangement poses Double Trouble to defendants who violate the right and gives plaintiffs two distinct avenues to vindicate the right—giving litigants more opportunities to innovate in this area of law.

I.  Elvis Presley’s Influence on the Postmortem Right to Publicity

A. The Postmortem Right to Publicity

Culture—even popular culture—often guides law. One area of law is specifically evolving to meet the increasing gravitational pull of celebrity: the postmortem right to publicity. In simple terms, the right provides that people who enjoy fame even after death have a descendible property rightin the use of their name, image, and likeness. The right most frequently vests in the deceased’s estate, assigns, or both. But it was not (and is not) always this way.

The status of the postmortem right of publicity across the United States is, to borrow a phrase, “All Shook Up.” Not every state in the Union recognizes the right. So, whether a celebrity’s name, image, and likeness receive protection beyond the grave depends on which state the celebrity domiciled in when he died. In states that don’t recognize the right, the deceased’s name, likeness, and image can receive some protection through licensing agreements or through copyright or trademark law. But these states that lack the postmortem right to publicity provide less shelter for the publicity right that the deceased enjoyed while living. For instance, take pop culture icon Marilyn Monroe. In the 2000s, her estate sued entities who used images of her in media and commerce without her estate’s authorization. When Monroe passed away in 1962, the two states in which she may have been domiciled—New York and California—had not recognized a postmortem right to publicity. So, the court held, Monroe could not control who inherited her publicity right because the right could not survive her death. The influence of Elvis Presley guided Tennessee to chart a different course.

B. The King’s Influence on Property Law in the Assembly

States have two ways to protect the postmortem right of publicity: by statute or by common law. Elvis’s influence led Tennessee to do both. Begin with the Personal Rights Protection Act of 1984 (PRPA). Commentators called the PRPA, the “Elvis law” due to the Presley estate’s efforts to get the bill passed, and the understanding of the bill as a reaction to a Sixth Circuit opinion which stated that the King’s reign over his right of publicity ended at his death. The PRPA declares that “[e]very individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.” “‘Individual’ means human being, living or dead,” indicating that the statute retroactively applies to celebrities who have already passed on—like Elvis Presley. And the individuals may “freely assign[ ] and licens[e]” these rights after death.

However, the PRPA has some exceptions. For instance, it has a “fair use” exemption for uses connected to “any news, public affairs, or sports broadcast or account.” And entities who own advertising platforms are not liable under the PRPA unless they have “knowledge or reasonably should have known of the unauthorized use of the individual’s name, image, or likeness.”

C. The King’s Property Right in the Court

After the PRPA, Tennessee courts separately found a common law grounding for the postmortem right to publicity in Elvis Presley International Memorial Foundation v. Crowell (Tenn. Ct. App. 1987). In this case involving the Presley estate, a not-for-profit organization that used Presley’s name sued a similar organization that had a license to use Presley’s name for unfair competition. The Presley estate intervened for the defendants, urging the court to recognize a common law postmortem right of publicity for the singer. In essence, the Tennessee Court of Appeals responded, “That’s All Right.” The court found a postmortem right of publicity based on background principles of Tennessee property law, independent of the PRPA.

The court began by acknowledging Tennessee’s “expansive view of property.” Inherent to this expansive view is the right of the owner to use and enjoy the property, dispose of it, and transfer it in a will. Presley evidently had a right to publicity while he lived. He made use of the right, and it had economic value. The court thus concluded that, just like a person’s real estate, investment holdings, or even his pair of Blue Suede Shoes, his right of publicity is descendible. 

The court further framed its holding through long-held background principles that animated Tennessee’s view of property. First, this postmortem right to publicity honors the “essential” nature of an individual’s testamentary right to “distribut[e]” property rights he enjoyed during his life to his heirs. Second, this right ensures that the individual, who worked to make his publicity a profitable commodity—even through “I Love Elvis” and “I Hate Elvis” buttons—can prevent disinterested parties from “reaping where [that individual] has sown.” Third, the right creates parity with the deceased’s other investments (say, in the stock market or other assets) by affording them the same protection. Just as the deceased intended to invest in stocks in a way to benefit his heirs and assigns, one can conclude the same if he built his name into “a valuable capital asset that will benefit his heirs and assigns after his death.” Fourth, this postmortem right honors the contract rights of the parties who received the right to use the deceased’s publicity to market their products. Even if countless vendors “Can’t Help Falling in Love” with the idea of using Elvis’s celebrity status to generate income, Presley himself had final say on his name’s use. And that selectivity ought to be preserved by honoring his existing contracts. Finally, a postmortem right to publicity would guard against fraudulent endorsements and “deceptively similar corporate names,” as shown in the case then before the court.

Most noteworthy, however, the court intentionally found this common law right independent of the PRPA or any statute. Indeed, the court decided the case in 1987—three years after the General Assembly passed the PRPA. 

D. The ELVIS Act

2024 saw another statutory intervention from the General Assembly—this time to target the looming, growing threat of AI. The Ensuring Likeness, Voice, and Image Security Act (the ELVIS Act) updated Tennessee’s statute that protected publicity rights to include voice in addition to name, image, and likeness. Commentators consider the ELVIS Act “a key development in a broader landscape of legislative efforts” to target technology and generative AI companies for publishing media and providing the tools to depict a person’s likeness without his consent. 

The ELVIS Act expands the postmortem right to publicity protections in many ways. First, the right of publicity now includes one’s voice—a fitting inclusion for a state so known for music. Second, the statute adds liability for entities who publish or facilitate these misuses of name, image, likeness, and voice—not just those who produce the content. Third, experts posit that these statutory prohibitions may have effectively eliminated the commercial use condition that the PRPA required. Finally, the statute allows entities that have contracted with a recording artist to sue for infringements on the artist’s publicity rights, thus expanding the baseline of potential plaintiffs along with the number of potential defendants. 

II.  The Relationship Between the Statute and the Common Law

The ELVIS Act may revive a question that has been relatively dormant since Crowell found a judicially created postmortem right to publicity: What is the relationship between Tennessee’s statutes and common law regarding the postmortem right to publicity? 

No Tennessee state or appellate court case explicitly defines the relationship between the statutory and the common law right. Marshall v. ESPN (2015), a case from the Middle District of Tennessee, offers an answer. The court posited that the postmortem rights to publicity under Tennessee common law and under the PRPA were “coextensive.” Put simply, they have the same scope. The district court went further, saying that the 1984 law “supplants whatever right to publicity that may exist under the common law.”

The text of the Crowell opinion, however, tells a different story. The decision came three years after the PRPA. And the court went out of its way to say that they determined the common law right to publicity “is not based upon” the PRPA. Moreover, the language of the Crowell opinion does not suggest that the statutory right supplants the common law. Rather, the opinion’s language indicates that both courts and the General Assembly can define the breadth. And while the court conceded that the General Assembly spoke on the matter, it did not cite any part of the PRPA to support its holding. Perhaps tellingly, no Tennessee state court has cited Marshall.

Turning to the statute, Tennessee courts only hold that a statute supplants the common law to the extent that the statute explicitly requires it. Arguably, Tennessee courts thought that the General Assembly did not have the final word on a postmortem right to publicity by holding that common law can provide relief independent of the PRPA. Even the ELVIS Act itself provides that its remedies “are cumulative and shall be in addition to any others provided for by law.” Contrast this phrasing with Illinois, whose state legislature clarified that their right to publicity statutes “are meant to supplant those available under the common law.” The common law right to publicity could have been “Always on the Mind” of the General Assembly when they passed the ELVIS Act, but the statute did not mention it. Advocates in Tennessee thus have one more avenue to vindicate the postmortem right to publicity than in other states.

If the two pathways of protection can coexist peacefully, one question that arises is what work each does individually. As we’ve seen, the ELVIS Act expands who can sue for publicity violations, broadens the span of actionable claims (by eliminating the commercial use and fabrication requirements), and offers numerous remedies for successful plaintiffs. However, one expert believes that Tennessee’s common law on its own could have broadened its publicity protections to include voice. Thus, the common law right could expand to future violations of publicity that the ELVIS Act may not cover. This expansion would allow innovative protections for someone’s publicity—during life or after death—to track with technological innovations that challenge the bounds of those existing protections. Commentators have applauded the ELVIS Act’s attempt to adapt to rapidly changing times. But with human ingenuity being what it is, enterprising content creators and distributors may find ways around the Act’s expanse. The Crowell court’s “expansive view” of property in Tennessee may be essential to meet the challenge. 

Conclusion

Elvis may have left the building, but he hasn’t left the law. Thanks to his legacy, Tennessee has continued to innovate its postmortem right of publicity laws. And the King’s influence has created a unique situation in this area of law: a statutory and common law protection that exist independent of, and likely do not supplant, each other. Of course, the legislature can step in and say that the ELVIS Act is final and supersedes the common law. But it has not—at least not yet. And it shouldn’t. Maintaining the current landscape could allow the common law to step in and protect violations that the statute does not currently contemplate. As states continue to evolve their approaches to the threats to publicity rights posed by generative AI, Tennessee can continue its trend-setting course. Indeed, the home of Elvis Presley can show other states The Wonder of Two protections for the postmortem right to publicity.

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John Rowe is a J.D. Candidate at The University of Chicago Law School, Class of 2027.