Right of Publicity

Estate of Presley v. Russen: Where an Estate's Publicity License Stops and a Tribute Show Begins

A New Jersey court held that Elvis Presley's right of publicity descended to his estate and barred impersonator merchandise and confusing marketing — but declined to shut down the live 'Big El Show' itself, drawing an early line between licensable identity and protected performance.

June 16, 2025
Empty theater stage lit by a single spotlight
A descendible publicity right reaches merchandise more easily than it reaches a live performance. Shutterstock
Educational content, not legal advice. This article explains general legal concepts. It does not create an attorney–client relationship. For your specific situation, consult a licensed attorney.

By the time Estate of Presley v. Russen reached the United States District Court for the District of New Jersey, the “Big El Show” had become a fixture of the Elvis-tribute circuit: a live stage production built around an impersonator who wore Presley’s style of clothing and jewelry, styled his hair the same way, handed scarves to the audience, and sang Presley’s catalog while imitating his voice and stage poses. The Estate of Elvis Presley, holder of the descendible right to exploit Presley’s identity, sued to stop the whole enterprise. In an opinion by Judge Stanley S. Brotman — Estate of Presley v. Russen, Civ. A. No. 80-0951 (D.N.J. Apr. 16, 1981) — the court delivered a result that licensing lawyers still cite for its restraint: it confirmed that the right of publicity survived Presley’s death and granted the estate an injunction, but only in part, leaving the live tribute performance itself standing.

At a glance

  • Case: Estate of Presley v. Russen, Civ. A. No. 80-0951 (D.N.J.)
  • Decided: April 16, 1981; opinion by Judge Stanley S. Brotman
  • Defendant’s enterprise: “The Big El Show,” a live Elvis-impersonator stage production, plus related records and merchandise
  • Descendibility: The court held Presley had a property right in his name and likeness that descended to his estate at death
  • Injunction granted in part: Enjoined the confusing use of the “BIG EL SHOW” mark and logo, and the use of Presley’s likeness on record covers, labels, pendants, and promotional materials
  • Injunction denied in part: Declined, on the preliminary-injunction record, to enjoin the live stage performance itself
  • Why it matters: An estate’s licensable identity reaches merchandise and confusing marketing more readily than it reaches an expressive live performance

A descendible right, confirmed

The threshold question was whether the estate held anything to enforce. Judge Brotman answered that it did. Building on the emerging consensus that a celebrity’s right of publicity is a property interest rather than a purely personal one, the court held that Elvis Presley had a property right in his likeness and name that descended to his estate upon his death. That conclusion placed New Jersey among the jurisdictions recognizing a descendible right of publicity at a moment when the doctrine was still being assembled court by court, and it gave the estate standing to police commercial uses of Presley’s identity.

But recognizing the right was the easy part. The harder work — and the reason the case endures — was deciding how far that right reached when the alleged infringement was itself a form of entertainment.

Two kinds of use: merchandise versus performance

The estate’s complaint swept broadly, seeking to enjoin the “Big El Show” mark, the impersonation, and the sale of associated goods. Judge Brotman disaggregated the enterprise into distinct uses and treated them differently.

On the commercial-merchandise side, the estate fared well. The court was prepared to enjoin the use of Presley’s likeness on record covers and labels, on pendants, and on promotional materials. These were straightforward appropriations: products that traded on Presley’s image to make a sale, with little expressive content of their own. They sat at the core of what a descendible right of publicity exists to protect — the estate’s ability to control, and license, the commercial value of the identity.

The trademark and unfair-competition claims fared similarly. The court found that the “BIG EL SHOW” name and design, as used and promoted, created a likelihood of confusion as to source or sponsorship — an audience might believe the production was authorized by or affiliated with the Presley estate. That confusion supported relief independent of the publicity theory, and the court was willing to enjoin the confusing marks and presentation.

The live performance was a different matter. Here the court hesitated. A staged musical tribute is not merely a product bearing an image; it is an expressive entertainment with creative content of its own — staging, arrangement, performance, the live experience. On the preliminary-injunction record, the court found insufficient evidence of immediate, irreparable harm to the estate’s commercial interests from the performance itself, as distinct from the merchandise and the confusing marketing around it. The court recognized the First Amendment considerations that attend theatrical productions, and while it concluded the defendant’s activities were substantially aimed at commercial exploitation, it stopped short of enjoining the show as a performance at the preliminary stage.

Why the line matters for licensing estates

The distinction Judge Brotman drew is the practical boundary of an identity license. An estate that owns a descendible right of publicity can license — and enforce against unlicensed — the use of the celebrity’s name and likeness on goods, in advertising, and in source-confusing branding. That is where the licensing revenue is, and that is where the right bites hardest. The harder the use is to characterize as expressive, the easier the estate’s case.

When the use is itself a performance or other expressive work, the analysis shifts. The estate’s property interest collides with the performer’s and the public’s interest in expression, and a court is far less willing to issue the blunt instrument of an injunction — particularly a preliminary one resting on a contested record. The result is not that estates can never reach performances; it is that they must do so with a stronger showing of commercial harm and a weaker expressive justification on the other side. Russen sketched that asymmetry early, and later right-of-publicity doctrine — with its transformative-use tests and expressive-work defenses — can be read as the elaboration of the line Judge Brotman drew between the pendant and the stage.

Open questions

The opinion resolves the case before it but leaves the doctrine’s edges soft. It does not specify how much expressive content a tribute performance must contain to escape an injunction, or how courts should weigh shows that are mostly imitation against shows that add genuine interpretation. It does not settle whether a fuller trial record — quantifying lost licensing opportunities or reputational harm — could have justified enjoining the live show after all; the denial rested on the preliminary posture and the proof then available. And because the court resolved the performance question largely on irreparable-harm and First Amendment grounds rather than announcing a categorical rule, it leaves later courts to decide how a tribute act fits within the modern frameworks that distinguish protected expression from commercial appropriation.

Implications

  • Disaggregate the defendant’s uses. Estates and licensees should separate merchandise, advertising, and source-confusing branding from expressive performance; the first three are far more readily enjoined than the last.
  • Merchandise is the strong claim. Likenesses on goods and promotional materials sit at the heart of a descendible right of publicity and invite injunctive relief.
  • Confusion claims add a second front. Where a tribute act’s name or logo suggests estate sponsorship, trademark and unfair-competition theories can support relief independent of publicity law.
  • Performances demand a stronger record. Enjoining a live show requires concrete proof of commercial harm sufficient to overcome the expressive interests on the other side, especially at the preliminary-injunction stage.
  • Descendibility is the predicate. None of the relief follows unless the governing state recognizes a right of publicity that survives the celebrity’s death and vests in the estate.

Frequently asked questions

Did the court shut down the “Big El Show”? No. It granted the estate a preliminary injunction in part — reaching the confusing “BIG EL SHOW” mark and the use of Presley’s likeness on records, pendants, and promotional materials — but declined, on that record, to enjoin the live stage performance itself.

Why could the estate stop the merchandise but not the performance? Merchandise bearing Presley’s likeness is commercial appropriation at the core of the right of publicity, with little expressive content. A live tribute performance carries its own expressive value and First Amendment weight, and the court found insufficient proof of irreparable commercial harm from the show itself at the preliminary stage.

Did the court recognize a right that survived Presley’s death? Yes. The court held that Presley had a property right in his name and likeness that descended to his estate at death, giving the estate standing to enforce it.

Authorities and sources