# 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 because the estate never proved an identifiable economic loss from the performance.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/estate-of-presley-v-russen-big-el-show-impersonator-publicity/


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. Judge Stanley S. Brotman's opinion in *Estate of Presley v. Russen*, Civ. A. No. 80-0951 (D.N.J. Apr. 16, 1981), 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 to enjoin the live stage performance itself, not because the show was protected expression but because the estate showed no identifiable economic loss from it
- **Right of publicity:** The estate was likely to succeed on the merits against the show, and the court rejected the First Amendment defense, but relief still failed for want of irreparable injury
- **Why it matters:** An estate's licensable identity reaches merchandise and confusing marketing readily, but reaching a live performance takes proof of concrete commercial loss the estate did not have

## 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, though not for the reason a modern reader might expect. The court did not find the show protected expression. It went the other way on that question: while acknowledging that "entertainment . . . enjoys First Amendment protection," Judge Brotman held that "entertainment that is merely a copy or imitation, even if skillfully and accurately carried out, does not really have its own creative component and does not have a significant value as pure entertainment." The Big El Show was billed as "A TRIBUTE TO ELVIS PRESLEY," not as parody, satire, or criticism, and the court concluded it "serves primarily to commercially exploit the likeness of Elvis Presley without contributing anything of substantial value to society." On that reasoning the estate was likely to succeed on the merits of its right-of-publicity claim against the show itself.

The show survived on irreparable injury instead. Because the right of publicity protects the commercial value of a name or likeness, the court required the estate to show that the defendant's use "has or is likely to result in an identifiable economic loss," a stricter demand than it applied to the trademark claims. The estate could not meet it. It was not sponsoring or licensing any stage show, or even a film incorporating Presley performances, so no customers were being diverted from anything the estate sold. The court went further and observed that the tribute might even have "stimulated the public's interest in buying Elvis Presley merchandise or in seeing films or hearing records embodying actual Elvis Presley performances." Free expression did do work here, but indirectly: because a good-faith imitation stripped of the confusing marks is "in some measure, consistent with the goals of freedom of expression," the court thought the estate should have to prove immediate, concrete harm rather than "rely on an intangible potentiality" before the show could be barred. Pendants and records were different, since the estate did license those goods, and unauthorized sales of them threatened exactly the licensing revenue the right exists to protect.

## 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 the use of the celebrity's name and likeness on goods, in advertising, and in source-confusing branding, and can enforce that right against anyone who uses it without a license. 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, the analysis shifts, but *Russen* locates the shift in the proof rather than in the defense. The estate's property interest brushes against the public's interest in expression, and the court's response was not to immunize the show but to raise the evidentiary bar: an estate seeking to enjoin a performance must point to money it is actually losing. That requirement bites hardest where an estate licenses merchandise but has no live-performance business of its own to be displaced, which was precisely Presley's estate in 1981. The result is not that estates can never reach performances; it is that they must tie the performance to an identifiable economic loss. *Russen* sketched that asymmetry early, and later right-of-publicity doctrine, with its transformative-use tests and expressive-work defenses, took a different route to a similar line, resolving tribute-style imitation through the First Amendment analysis that Judge Brotman resolved against the imitator.

## Open questions

The opinion resolves the case before it but leaves the doctrine's edges soft. It does not specify how much a tribute act would have to add (interpretation, commentary, biography) before it stops being "merely a copy or imitation" and starts contributing something the court would count as substantial value. It does not settle whether a fuller trial record quantifying lost licensing opportunities could have justified enjoining the live show after all; the denial rested on the proof then available, and the court expressly noted the estate had never claimed the show was of poor quality or reflected badly on Presley's reputation. And because the court resolved the performance question on irreparable-harm 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.** Winning the merits is not enough. *Russen* required identifiable economic loss before it would enjoin the show, and an estate with no live-performance business of its own may have nothing concrete to point to.
- **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?**
The difference was proof of harm, not First Amendment protection. The court found the estate likely to succeed on the merits against the show and rejected the free-expression defense, reasoning that entertainment which is merely an imitation has no real creative component of its own. But because the estate was not sponsoring or licensing any stage show, it showed no identifiable economic loss from the performance, and the court required that showing before enjoining it. The estate did license pendants and records, so unauthorized sales of those items were irreparable injury.

**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

- *Estate of Presley v. Russen*, 513 F. Supp. 1339 (D.N.J. 1981), full opinion text, Caselaw Access Project: https://static.case.law/f-supp/513/cases/1339-01.json
- *Estate of Presley v. Russen*, Quimbee case brief: https://www.quimbee.com/cases/estate-of-presley-v-russen
- New Jersey right-of-publicity overview, Digital Media Law Project: https://www.dmlp.org/legal-guide/new-jersey-right-publicity-law
- New Jersey, Rothman's Roadmap to the Right of Publicity: https://rightofpublicityroadmap.com/state_page/new-jersey/
- "The King Is Dead! Long Live The King!" Epstein Becker Green (post-mortem publicity analysis): https://www.ebglaw.com/insights/publications/the-king-is-dead-long-live-the-king-elvis-sightings-taking-care-of-business-and-rights-of-post-mortem-publicity