Who Can Inherit Fame?

The survivors of celebrities vie for a piece of the pie

"Since you're go-o-o-o-ne I got a mess of blues," wailed Elvis Presley in a 1960 hit. But now that Elvis is gone, it is judges who have a mess of the blues. They are struggling to decide whether the rights to capitalize on Presley's fame died with him. At stake are millions of dollars in royalties from the sales of T shirts, posters and other memorabilia featuring the former King of Rock 'n' Roll.

Presley is by no means the only departed celebrity whose ongoing aura is the subject of courtroom clashes. In the past few years a number of cases brought by heirs of stars have produced so many conflicting rulings that probably only Congress can settle the is sue of whether fame--or, at least, its residuals--can be inherited.

The legal framework for this issue began to take its modern form in 1953. New York Giants Catcher Wes Westrum had signed contracts giving two rival bubble-gum firms exclusive rights to put him on their baseball cards. The companies took their fight to court, where a federal judge recognized the "right of publicity," entitling celebrities to a cut of the profits rung up by merchandise bearing their likenesses.

Ten years later, the son and the widow of Bela Lugosi, star of the Dracula films, tried to take this doctrine a step further. They argued that this right was essentially property and therefore should pass on to heirs. In a California suit, they asked the courts to stop Universal Pictures from merchandising 70 Dracula products, ranging from jigsaw puzzles to belt buckles, and sought compensation based on the profits. Citing the First Amendment, Universal replied that the design of merchandise is a form of free speech that should not be restrained by anyone's heirs. Besides, said Universal's lawyer, Robert Wilson, Lugosi "attained fame and fortune because the company made and distributed the movies he starred in."

After eleven years of wrangling, a trial judge decided in favor of the Lugosis, giving them $70,000 and barring Universal from merchandising Lugosi's likeness. The ruling had quick impact. In New York, where the widows of Stan Laurel and Oliver Hardy were suing three companies for exploiting the images of the comedy pair, a federal judge took his cue from the Dracula decision. He barred the firms from merchandising products like comic books, and liquor bottles shaped in the forms of the actors, and ruled that the plaintiffs should receive a sum of money to be fixed after a future hearing. Says Lucille Hardy Price: "I was deprived of $10,000 to $20,000 annually for about ten years."

The Laurel and Hardy decision was followed by yet another ruling that says the right of publicity can survive the death of the celebrity. Federal Judge Charles H. Tenney stopped several companies from distributing posters and other items like iron-on patches that featured Presley's portrait. Two months later, in a federal court in Tennessee, Presley memorabilia were at issue again, and the judge followed Tenney's lead by forbidding the sale of $25 statuettes of the singer.

Yet success in the courts, like fame on the screen, can be fleeting. In the past six months, three rulings have dealt heirs of the famous a heavy blow. In December the California Supreme Court reversed the Lugosi decision. It also rejected the claims of a nephew of Rudolph Valentino, who had sued over a fictionalized account of his uncle's life broadcast on ABC-TV. Then in March a U.S. appeals court overturned the Tennessee ruling on the Presley statuettes.

So far, the Supreme Court has passed up one chance to consider the issue, and some experts believe only Congress can deal with it properly. U.C.L.A. Law Professor Melville Nimmer suggests patterning the right to share in the proceeds of posthumous exploitation after copyright law, with heirs entitled to royalties for 50 years, after which, for example, a bust of Beethoven would be in the public domain. But so far no one has been sufficiently exercised to propose any legislation on the issue. The constituency is, while notable, notably small.

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