Fair Use, Famous Faces, and You
This is a photo of Elvis Presley meeting then-President Richard Nixon in 1970. It happens to be the most requested photo in the National Archive, and one look at it explains why: It’s a rivetingly peculiar time capsule, a confirmation that the conservative President elected to stick it to the hippies and the gyrating patron saint of rock n’ roll schmaltz indeed existed at the same time.
Say you’re so engrossed by this photo that you feel compelled to do something with it — maybe you’re Andy Warhol and want to add it to your latest series. You can freely download the photo, as well as the outtakes, letters, and memos related to the meeting, on the National Archives’ website, and according to US Copyright Law, any works produced by the government automatically enter the public domain. That technically means the main photo and the other contents included are free to use as you please, per your right as a tax-paying citizen. But note the rest of the package’s disclaimer: “…The estates of Richard Nixon and Elvis Presley may claim rights in their likenesses and images, and further use of these photographs may be subject to those claims. Anyone who intends to download these images and use them commercially should first contact the appropriate representatives of former President Nixon or Mr. Presley or consult with his own legal counsel.”
So while the photo is in the public domain, there is more to the story than even the disclaimer hints at. As it turns out, in some states in the US, you have the right to profit from your name, image, and likeness. To make things more legally complicated, this “right of publicity” is inheritable the same as your bank accounts are. So, as a fan of the Elvis-Nixon photo or the people in it, where do all of these disclaimers and jargon leave you?
Unfortunately, if you just want to make art, you’ll need to have a keen understanding of the law and a good lawyer to help you navigate any requisite cease and desist letters you may receive.
Take artist Joni Mabe, who acquired some of Elvis’s hair from his barber. She then went to her own local barbershop, swept the floor, and ”tossed it all together like a salad,” she told us. Then she made art: She hand placed these strands of hair in individually made buttons and called them her Maybe Elvis Hair Buttons (get it?). She even went so far as to get a copyright for them issued from the Library of Congress. But not even that stopped Elvis Presley Enterprises from sending her a cease and desist letter. Today, the button and the letter are on permanent display in her museum, The Panoramic Encyclopedia of Everything Elvis in Cornelia, Georgia.
We met Joni while filming The Faithful and visited her museum, and now we have one of her Maybe Elvis Hair Buttons on display in our own collection. It’s a limited edition, she tells us. Time and again, we’d meet fans and artists who wanted to express their affinity for Elvis, Princess Diana, or Pope John Paul II through art or merch or events, only to be faced with cease and desist letters or, worst case, full-on lawsuits from angry estates. Our film itself, in fact, had to be aware of the same concerns over copyright and licensing when it came to using the likenesses of its three subjects.
What we’ve learned, though, is that you have the right to make art. The right of publicity is a state law, and so it’s in a different category of protection than the federal copyright law enshrined in the Constitution as a way to promote citizens to create value. Furthermore, those scary C&D letters are required to be sent out by the “owners” whenever they become aware of an infringement or potential infringement — only a court can decide if an infringement took place. What do most people do when they receive a letter with the names of 20 lawyers on it? They do whatever the paper says to do.
The legal ramifications of celebrity and legacy share the spotlight with the more spiritual and cultural themes tackled in The Faithful, so it’s worth giving an overview of the concepts at play. I should note here that I am not a lawyer, just a writer who is curious about entertainment law and reads a lot about it with minimal sleep. Please refer to the real experts and resources if you’re seeking legal counsel for your artistic or financial endeavors; all of my sources will be hyperlinked throughout this story.
That said, here’s a brief overview of copyright, intellectual property, and fair use, in the event you want to make an Elvis shrine or a documentary film.
In a nutshell, intellectual property is the legal term for an original creation, invention, or work, and copyright is one of the main ways to ensure that creators receive proper credit and protection by giving the copyright holder exclusive rights to reproduce their work. Copyrights do eventually expire in the US, the duration generally being the author’s lifetime plus 70 years, with the idea being that once the creator is dead and have no more to financially gain, their invention can live on as something the public can freely use — in other words, it enters the public domain. There are obviously variations to the rule — one certain mega-corporation has been lobbying for decades to avoid losing the copyright on their mouse-eared mascot — but this expiration is why you can write a story about Sherlock Holmes, Robin Hood, and King Arthur among other age-old characters without worry of legal repercussions.
But you’re not interested in old literary figures. You want to use the King — or, at least, something that’s copyrighted by someone else. You then have two options: You can pay for the license to use an IP for a given project, but costs can be steep depending on the subject, especially for someone of Elvis’ stature.
The second and more viable route for indie artists and everyday people with no corporate backing is to rely on fair use, which is a situation where one can legally use material without the need for licensing. Fair use can be a messy concept to navigate, especially ever since the dawn of the Internet and the democratization of media — more on that in a bit — but the bottom line is that your use of copyrighted material must be considered “transformative” in order to be considered fair use. You can’t just legally print 100 copies of the Elvis-Nixon photo and sell them in a shop, for instance; you need to create something new and original that builds upon the existing material. Andy Warhol’s iconic pop art prints of Elvis, Marlyn Monroe, and other celebrities were done without the need for licensing because he manipulated the color, materials, design, and other aspects of these images to, well, transform the original images into distinctly new works.
Commonly accepted transformative categories include criticism/commentary (e.g. a movie review), education (e.g. a lecture), non-profit (e.g. you’re making it for yourself or for free), reporting (e.g. a news article), scholarship/research (e.g. this article), and parody (e.g. a “Weird Al” Yankovic song). If you’re not sure if you fit those categories, the US Copyright Act lists four factors that can be used to legally determine fair use:
- “Purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes.” For example, you putting the Elivs-Nixon photo in a PowerPoint presentation meant for a lecture is unquestionably fair use under this factor.
- “Nature of the copyrighted work.” A judge is more likely to rule fair use if the copyrighted work is of factual or informational origins rather than something that is fictional. By that logic, a case involving the Elvis-Nixon photo would likely meet this factor for fair use, since it’s a photo of a non-fictional moment issued by the government for public viewing and not a fabricated event from a movie or novel.
- “Amount and substantiality of the portion used in relation to the copyrighted work as a whole.” How much are you using of the original, and how significant is that portion? This is why posting a video of you watching an entire movie end to end on YouTube doesn’t fall under fair use — you used way too much of the copyrighted work. The Elvis-Nixon photo obviously doesn’t have a lot to it, being a simple picture of two people, so being creative and transformative will especially work in your favor here.
- “Effect of the use upon the potential market for or value of the copyrighted work.” Is your creation involving the Elvis-Nixon photo in direct competition with Elvis Presley Enterprises? Will fans skip Graceland in favor of consuming your work? If not, then you most likely meet this factor.
These legal grapplings with ownership of ideas, the dissemination of intellectual property, the rights others have around using your property have been at play for centuries across human civilizations. One of the earliest known instances of IP are chefs from the Greek state of Sybaris patented their signature dishes way back in 500 BCE; the first application of fair use in the US was the 1841 ruling of Folsom v. Marsh, which determined that an abridgment of an existing work does not infringe on the original’s copyright.
Copyright and IP have been around in some way, shape, or form for a long time, so it’s no wonder that their definitions are flexible and up to interpretation. Each major case adds another wrinkle for all cases after to consider: Harper & Row v. Nation Enterprises (1985) ruled against newspaper The Nation for publishing an excerpt from Gerald Ford’s memoir because it hadn’t been officially released yet, establishing that a copyright holder always has the first right to publication. Campbell v. Acuff-Rose Music, Inc. (1994) set the precedent that parodies qualify for fair use even if sold commercially. Elvis Presley Enterprises, in fact, has been at the helm of influential fair use and copyright cases: There was a series of suits between EPE and English shopkeeper Sid Shaw throughout the 90s over the right to trademark the names “Elvis” and “Elvis Presley,” which ended in a UK appeals court ruling in Shaw’s favor, arguing that trademarking names lacked specificity — as crazy as it may seem, there are numerous people in the world potentially named Elvis Presley. These cases speak to the difficulty celebrity estates face with guarding their IPs, which often simultaneously exist as public cultural beacons and private financial assets.
These kinds of cases have only become more significant since the dawn of the digital age and the democratization of access to information and media. These factors have only intensified the always strenuous relationship between IP holders who sell and the independent artists, fans, and general public who consume and, as a result, create. Think back to the mainstream music industry suing Napster into oblivion 21 years ago, or the unfiltered Wild West that was early YouTube in the mid-2000s. The latter company has obviously survived, but they are still dealing with the growing pains of being both advertiser-friendly and a platform for the everyman creator. The website’s infamous content ID algorithm, for instance, will automatically demonetize or even delete videos that are flagged as copyright infringement but actually fall under fair use. The guilty-until-proven-innocent approach to copyright monitoring has financially and professionally jeopardized the many independent creators who YouTube supports on paper.
The Faithful began filming in 1999, when the digital age was ramping up and copyright law was about to be tested like never before. This time was also when indie film was evolving into a full-on genre, and so the limits for small-operation documentaries with no studio backing or legal team were widely untested. Luckily, there have been important steps made for independent creators in film and otherwise happening in tandem with the film’s production over the past 20 years: Lawrence Lessig’s Creative Commons in 2001, American University’s Documentary Filmmakers’ Statement of Best Practices in Fair Use in 2011, and Lenz v. Universal Music Corp. in 2015, which ruled that fair use must be considered by copyright holders before issuing takedown notices online. So while you still might still get into trouble even today if you wanted to make something with the photo of Elvis Presley and President Nixon, more due to an imperfect system than your own fault, there are tools and precedents that you can use to protect yourself and keep the creativity flowing.
Visit our website to stream “The Faithful” at your leisure, or join us Thursday, April 8 for a live screening and Q&A with Annie Berman and Ralph Burns hosted by the USC School of Cinematic Arts. Click here for more info.
