Right of Publicity

Fame Falls to the Public: Memphis Development v. Factors and Elvis's Post-Mortem Persona

Why the Sixth Circuit held in 1980 that Elvis Presley's right of publicity died with him and passed into the public domain—an Erie prediction Tennessee would later reject.

May 19, 2025
Bronze statue of a musician standing in a city plaza
A charity wanted to honor Elvis with a bronze statue; the fight was over who owned his image after death. 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.

Within days of Elvis Presley’s death in August 1977, two competing visions of his legacy collided. A Memphis charity wanted to erect a bronze statue of the singer downtown and sold eight-inch pewter replicas to donors who gave twenty-five dollars or more. Meanwhile, the company that had bought the exclusive license to Presley’s commercial image—acquired from his licensing entity just two days after he died—claimed the exclusive right to profit from his likeness. In Memphis Development Foundation v. Factors Etc., Inc., No. 79-1270 (6th Cir. Mar. 6, 1980), reported at 616 F.2d 956, the United States Court of Appeals for the Sixth Circuit resolved the clash by holding that Elvis Presley’s right of publicity did not survive his death. After death, the court declared, “the opportunity for gain shifts to the public domain, where it is equally open to all.” It is the most forceful judicial statement ever made against descendibility—and one that Tennessee itself would later disown.

At a glance

  • Case: Memphis Development Foundation v. Factors Etc., Inc., No. 79-1270 (U.S. Court of Appeals for the Sixth Circuit, Mar. 6, 1980), reported at 616 F.2d 956.
  • Opinion: Authored by Circuit Judge Gilbert S. Merritt, joined by the panel.
  • Jurisdiction: Diversity case applying Tennessee law under the Erie doctrine; the court was predicting how Tennessee’s highest court would rule.
  • Posture: The district court (W.D. Tenn.) had held that Presley’s right of publicity descended to his heirs and assigns and enjoined the Foundation. The Sixth Circuit reversed.
  • Holding: The right of publicity is not inheritable. It is not descendible and terminates at death, after which the commercial value of the persona enters the public domain.
  • Aftermath: Tennessee courts and the Tennessee Legislature subsequently rejected this prediction, recognizing a descendible post-mortem right.

The procedural backdrop matters. Before he died, Presley had assigned the exclusive right to exploit the commercial value of his name and likeness to Boxcar Enterprises. Two days after his death, Boxcar sold a license to Factors Etc., Inc., for $150,000, with the consent of Presley’s estate. Factors thus claimed to hold the exclusive post-mortem right to merchandise Elvis. When the Memphis Development Foundation distributed its pewter statuettes, Factors treated it as infringement. The legal question was not whether the Foundation’s conduct was commercial—it plainly involved selling replicas—but whether there was any inheritable right for Factors to enforce in the first place.

An Erie prediction about Tennessee law

Because the case arrived in federal court on diversity jurisdiction, the Sixth Circuit was not free to announce its own preferred rule. Under Erie Railroad Co. v. Tompkins, the court had to apply Tennessee substantive law, and because no Tennessee decision squarely controlled, it had to predict how the Tennessee Supreme Court would resolve the descendibility question. This posture is essential to understanding both the opinion’s reasoning and its ultimate fate. Judge Merritt was making an educated forecast about state law, not issuing a definitive federal rule of publicity. When a state’s own courts later reach a contrary conclusion, an Erie prediction is superseded—which is precisely what happened here.

The court acknowledged that it was writing on a nearly blank slate and that thoughtful judges could disagree. Indeed, the Second Circuit, addressing the same Presley rights in parallel litigation, had taken the opposite view. The Sixth Circuit nevertheless concluded that, absent guidance from Tennessee, the sounder prediction was that the state would treat the publicity interest as personal and non-inheritable.

Fame as a public attribute

The heart of Judge Merritt’s opinion is a policy argument about the nature of fame itself. Celebrity, the court reasoned, is not created in isolation by the individual; it is a collaborative product of the public’s attention, the media’s amplification, and broad social participation. “Fame falls in the same category as reputation,” the court wrote; “it is an attribute from which others may benefit but may not own.” On this view, the law should be reluctant to convert so public a phenomenon into a perpetual private monopoly that descends through generations of heirs and assignees who contributed nothing to the renown.

The court also questioned the standard economic justification for a post-mortem right. The usual argument is that recognizing descendibility provides an incentive: people will invest in developing their talents and personas if they know the resulting value can be passed to their families. Judge Merritt found this unpersuasive at the margin. The prospect of fame and fortune during life already supplies ample incentive to achieve; few performers labor primarily for the sake of post-mortem merchandising revenue their heirs might collect. Stripping away the after-death monopoly, the court suggested, would not meaningfully dampen anyone’s drive to become famous. And against that weak incentive case, the court weighed real costs: the difficulty of defining the right’s duration and scope, the burden on free expression and commerce, and the unfairness of locking up images that the public had helped make iconic.

The court was careful to note what it was not deciding. The holding addressed the post-mortem situation only; it did not disturb a living person’s right to control the commercial use of his identity. The opinion drew its line precisely at death, treating that moment as the point where a personal, non-transferable interest dissolves and the commercial opportunity opens to everyone.

The prediction that did not hold

The most instructive feature of Memphis Development in hindsight is that it was wrong about Tennessee law—and was authoritatively shown to be wrong by Tennessee itself. Within a few years, Tennessee’s courts recognized a descendible right of publicity, and the Tennessee Legislature enacted a statutory post-mortem right protecting a deceased personality’s name, likeness, and image, enforceable by the estate and its licensees. A federal Erie guess about state common law yields once the state’s own institutions speak, and they spoke decisively in favor of descendibility. As a practical matter, the Presley estate’s licensing program—today one of the most valuable in entertainment—operates under exactly the regime the Sixth Circuit predicted would not exist.

This trajectory makes Memphis Development a cautionary tale about the limits of federal predictions on unsettled state-law questions, and a vivid illustration of the broader national movement. Like Lugosi in California, the case represents the restrictive, privacy-derived view of publicity; and like Lugosi, it was overtaken by the property-based, descendible model that legislatures came to favor. The opinion endures less as good law than as the canonical articulation of the argument against heritable fame—the position every advocate for a post-mortem right must still answer.

Open questions

  • How far does an Erie prediction bind? Once a state recognizes descendibility by statute or decision, conduct predating that recognition can raise thorny reliance and retroactivity questions for parties who acted on the federal forecast.
  • Does the incentive rationale hold up? Judge Merritt doubted that post-mortem rights drive achievement. The empirical strength of that claim—central to descendibility debates everywhere—remains contested.
  • Where is the boundary with expression? The Foundation’s statue blended commemoration with sales of replicas, blurring the line between honoring a public figure and exploiting a protected persona.

Implications

  • Descendibility can turn on which sovereign decides. A federal court predicting state law and the state’s own courts can reach opposite results; the state ultimately controls.
  • The “fame belongs to the public” argument has a pedigree. Memphis Development is the leading source for the view that celebrity is a shared social product, not heritable property.
  • Estate licensing rests on state recognition. The multimillion-dollar Presley licensing business exists because Tennessee rejected this opinion, not because of it.
  • Incentive theory cuts both ways. Courts and legislatures weighing post-mortem rights still debate whether after-death protection meaningfully encourages achievement during life.
  • Erie predictions are provisional. Practitioners should treat federal forecasts of unsettled state law as vulnerable to later state-court correction.

Frequently asked questions

Did this case mean anyone could sell Elvis merchandise? At the time and under the Sixth Circuit’s reading of Tennessee law, the post-mortem right was not inheritable, so the commercial opportunity was open to all. That changed when Tennessee subsequently recognized a descendible right by court decision and statute.

Why was a federal court deciding Tennessee law? The case was in federal court on diversity jurisdiction. Under the Erie doctrine, the court had to apply Tennessee substantive law and, lacking controlling precedent, predict how Tennessee’s highest court would rule.

Is Memphis Development still good law? No, not as a statement of Tennessee law. Tennessee’s courts and legislature later recognized a descendible post-mortem right of publicity, superseding the Sixth Circuit’s prediction. The opinion remains influential as the classic argument against descendibility.

Authorities and sources