Elvis Presley's Legacy - Alive and Protected!

By Joel Hecker, Esq.





         To what extent, if any, can photographs, film clips and music be safely used in a biography without permission
 
from the copyright owners of such material?

         The courts have grappled with this issue on a number of occasions with differing results, depending upon the actual facts. The latest court to consider the issue is the United States Court of Appeals for the Ninth Circuit, which upheld a District Court decision finding that such use was, indeed, copyright infringement.

         The case, Elvis Presley Enterprises, Inc. (and others) v. Passport Video (and others), concerned the production and sale of a sixteen-hour-long video documentary divided into sixteen one-hour episodes, about the life of Elvis Presley. It sold for $99 at retail. Appropriately enough, it was titled The Definitive Elvis. The promotional material and packaging described it as "an all-encompassing in-depth look at the life and career of a man..." Unfortunately for the defendants, their use of some of the copyrighted materials, such as television and movie clips, still photographs and music, was not limited to brief or short uses, nor were they extensively used with added elements such as narrative voice overs.

         As a result, the Circuit Court of Appeals, in a 2-1 decision rejected the defendants' Fair Use defenses, and upheld a preliminary injunction barring the sale or distribution of the material pending a trial on the merits.

         The Court found the use to be clearly commercial in nature, which seeks to profit directly from the copyrighted material used without a license. It further found that the use was not consistently "transformative." That is to say, many
of the clips were validly used only for a few seconds for reference purposes with narrative talk-over, but other clips and material were played without interruption beyond the scope of reference. These clips and materials were used simply for entertainment purposes, thereby taking the heart of the copyrighted material which was available for commercial licensing by the copyright owners.

         The decision contains some curious language which may eventually impact on the final outcome of the case after trial. The Court, faced with a vigorous dissent, constantly emphasized that its holding was not intended to express how the two judges comprising the majority of the panel would have ruled if they were examining the case at a hearing as trial judges. This was because the legal standard of review for the appeals court was whether the District Court Judge abused its discretion in its decision. That is a higher standard of proof that it just got it wrong.

         Therefore, the majority panel may be telling the District Court Judge that, although they cannot overturn the decision, they do not agree with it.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: Heckeresq@aol.com.


           


           

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