Policing Elvis: Legal Action and the Shaping of Post-Mortem Celebrity Culture as Contested Space
Entertainment Law, Vol. 2, No. 3, pp. 35-69, November 2004
35 Pages Posted: 10 Jun 2005 Last revised: 28 Jul 2010
Date Written: July 28, 2010
Celebrity cultures have their own careers during and beyond the lives of their creators. While they are shaped primarily by creativity and sustained by market forces, no sooner is celebrity created than it becomes a contested space and a power struggle ensues. This article explores the use of legal and quasi-legal actions in the shaping of celebrity culture as contested space. It draws upon an analysis of the post-mortem career of Elvis Presley to illustrate how our knowledge of Elvis has been formed by the various legal actions which assisted the passage of his name, image and likeness from the public to the private domains and also the various 'policing' governance strategies that have since been employed to maintain control over the use of his image.
Central to the discussion is an exploration of the paradox of circulation and restriction, whereby the holder of an intellectual property right in a celebrity culture needs to circulate it in order to exploit its popularity and thus generate income streams, while simultaneously regulating the ways that the celebrity culture is consumed in order to maintain legal control over it in order to preserve those same income streams. The 'paradox' arises from the observation that, on the one hand, too much open circulation of a celebrity culture can lead to the development of secondary or even generic meaning that not only threatens the holder's exclusive rights over the property, but also has the potential to demean, debase or even destroy the overall integrity of the culture. On the other hand, too much restriction through over zealous control could effectively strangle the celebrity culture by killing off sensibilities of personal ownership and affiliation.
It will be argued that not only will the balance between circulation and restriction never be an easy fit, but it is also wrong to perceive it simply as a zero sum equation. The relationship between the two is far more complex than assumed by the traditional legalistic model because the paradox provokes conflicting interpretations of the truth, which subsequently fuels debates about the celebrity, retains public interest and ultimately keeps the celebrity culture alive. The 'contestability' of celebrity culture is therefore not the traditionally assumed death threat to popular culture, rather, it is an important, if not essential, aspect of the career of a posthumous celebrity cultures.
This article is largely concerned with US intellectual property law, particularly the right of publicity whose origins lie in the right of privacy, however, the discussion has potential significance for European jurisdictions because of the development there of privacy rights under EU law.
Keywords: Intellectual property rights, Elvis Presley, Right of Publicity, Celebrity Culture, Celebrity, Intellectual Property
JEL Classification: O34, K19
Suggested Citation: Suggested Citation