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Policing Elvis: Legal Action and the Shaping of Post-Mortem Celebrity Culture as Contested Space
Abstract
Celebrity cultures have their own careers during and beyond the lives of their creators. While they are shaped primarily by creativity and sustained by market forces, no sooner is celebrity created than it becomes a contested space and a power struggle ensues. This article explores the use of legal and quasi-legal actions in the shaping of celebrity culture as contested space. It draws upon an analysis of the post-mortem career of Elvis Presley to illustrate how our knowledge of Elvis has been formed by the various legal actions which assisted the passage of his name, image and likeness from the public to the private domains and also the various 'policing' governance strategies that have since been employed to maintain control over the use of his image. Central to the discussion is an exploration of the paradox of circulation and restriction, whereby the holder of an intellectual property right in a celebrity culture needs to circulate it in order to exploit its popularity and thus generate income streams, while simultaneously regulating the ways that the celebrity culture is consumed in order to maintain legal control over it in order to preserve those same income streams. The 'paradox' arises from the observation that, on the one hand, too much open circulation of a celebrity culture can lead to the development of secondary or even generic meaning that not only threatens the holder's exclusive rights over the property, but also has the potential to demean, debase or even destroy the overall integrity of the culture. On the other hand, too much restriction through over zealous control could effectively strangle the celebrity culture by killing off sensibilities of personal ownership and affiliation. It will be argued that not only will the balance between circulation and restriction never be an easy fit, but it is also wrong to perceive it simply as a zero sum equation. The relationship between the two is far more complex than assumed by the traditional legalistic model because the paradox provokes conflicting interpretations of the truth, which subsequently fuels debates about the celebrity, retains public interest and ultimately keeps the celebrity culture alive. The 'contestability' of celebrity culture is therefore not the traditionally assumed death threat to popular culture, rather, it is an important, if not essential, aspect of the career of a posthumous celebrity cultures. This article is largely concerned with US intellectual property law, particularly the right of publicity whose origins lie in the right of privacy, however, the discussion has potential significance for European jurisdictions because of the development there of privacy rights under EU law.
Version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=740554
... Furthermore, there is the simultaneous irony that technologised and legally unstable income stream collection practices, such as 'speculative invoicing'-the sending of invoices to alleged copyright infringers demanding payment else face further legal action-are corrupting the very process that they seek to protect (Wall, 2015). All the while, there are strong indications from the world of IP management that there exists a curious paradox of circulation and control (seeWall, 2003) which demands that successful management of IP in its current and foreseeable form has to achieve a critical balance between restricting it enough to prevent it from becoming too diluted and losing its public appeal and value, and letting it roam free enough for consumers to buy into it and creators incorporate the themes into the next generation of popular culture-itself a contradiction to existing intellectual property 'central origin myths' (see below). This paper will explore the theft of creative ideas as a cybercrime and will focus upon the rather contradictory intellectual property issues raised by the technologies of digital downloading via file sharing. ...
... This paper will explore the theft of creative ideas as a cybercrime and will focus upon the rather contradictory intellectual property issues raised by the technologies of digital downloading via file sharing. It will focus mainly on copyright and will draw upon and develop ideas from a number of previous works (Wall, 2015Wall, & 2003). It will question some of the arguments that are used to justify intellectual property law in this digital age and some of the tactics used to protect them. ...
This chapter explores the theft of creative ideas as a cybercrime and focuses upon the rather contradictory intellectual property issues introduced by the technologies of digital downloading via file sharing. It examines what has changed and how technology has disrupted creative arts to the point that it begins to challenge intellectual property law. The chapter also explores what is actually being protected and by whom. It outlines the counter-case for file sharing by looking at the changing business model of the music industry within the context of digital and networked technologies and at who the creative industries are in terms of creative assets and creative artists. The chapter also examines the practice of speculative invoicing to manage and even 'police' illegal file sharing by criminalizing the shared space. It further explores the paradox of circulation and control and the balance that needs to be obtained in order to find a balance to keep intellectual creations alive and help them develop.
... Other studies have ignored fandom or been unaware of a cross over. For example, authors such as David Wall (2010) have examined specific cases of the industrial policing of star images through devices such as trademark and intellectual property legislation. ...
This chapter begins by examining the development of a fan studies mainstream as a process of marginalization of attention to celebrity. It then considers how deductive areas of fan research have also inadequately conceptualized celebrity attachment. Using Gary Boas and Richard Simpkin as examples, the chapter then shows that there are subtle differences between fandom and celebrity following per se. It reaches its climax with a discussion of effervescence: a useful explanatory mechanism from Emile Durkheim’s theory of religion that helps to account for the pleasures of following celebrities. Finally, the chapter contrasts a neo-Durkheimian approach to fandom with some classic and contemporary research on parasocial interaction. I suggest that focusing on fan motivation and affect – perhaps through a refashioning of Durkheim’s work – may help us escape the long shadow of the mass culture critique.
... Ever since the legal principle of " descendibility " was accorded to the rights to publicity in the early 1980s , the image of Elvis has been controlled by the aggressively litigious Elvis Presley Enterprises ( EPE ) . David Wall ( 2003 ) argues that the " post - mortem Elvis industry " is characterized by a paradox of circulation and restriction ; EPE need to circulate the intellectual " real estate " of Elvis to generate income streams but it also regulates the way that the posthumous Elvis image is used to ensure that it is not demeaned or transformed . Although , as Wall points out , " Elvis has become a generic symbol and remains a vibrant source of signs used in global cultural production " ( 2003 : 60 ) , the celebrity image of Elvis does not exist in the public domain . ...
This article uses a striking example of digital remix promotion - BBC Radio 2's Elvis ad - to examine developments in the contemporary branding and broadcast environment. Developing work by John Caldwell, it examines the Elvis ad as a 'deep text', a promotionally reflexive articulation by media industries about the nature of corporate media identity and aesthetics. Suggestive of the BBC's attempt since the late 1990s to make its brand 'sing', and relating specifically to the visualization of radio in the digital age, the article uses the Elvis ad to investigate the performance of network personality in the multi-channel era, the growing role of specialist brand/design companies such as Red Bee Media, and the operational and ontological transition of the BBC to a digital media world. More generally, the article considers the relation of found-footage promotion to the 'spatialization of audiovisual culture'.
... This cycle was nicely summed up by Australian musicians, Rogue Traders: 'Fashion is the only cure, It always leaves you wanting more, Fashion people know the score, Ah? Fashion !' 11 Within the context of fashion design piracy, Raustiala and Sprigman (2006) have called this the 'Piracy Paradox', but similar contractions are also found in other areas of intellectual property to also challenge the orthodox views outlined earlier. See, for example , Gaines (1992: 5) 12 and Wall (2003: 37), who discuss the paradox of circulation and restriction within the context of celebrity rights as intellectual property. ...
Counterfeiting raises some interesting intellectual questions for criminologists, policy makers and brand owners, not least that it differs from the types of offending that traditionally form the crime diet of the criminal justice system. Whilst it is growing in prevalence due to the enormous returns on investment, it is unlikely that the public purse will fund major anti-counterfeiting initiatives in a climate of public sector cut-backs, emphasising the need to allocate resources effectively. This article seeks to locate the public interest in policing counterfeit luxury fashion goods by separating it out from the broader debate over safety-critical counterfeits such as aircraft parts. It then maps out, what is in effect, the criminology of desire for counterfeit goods, before outlining the market incentives for counterfeiting and related criminal activity.
Pre-print version available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1649773
Such a statement is resonant of a severe crime, but what sounds like a terrible and degrading misdeed turns out to concern the sale of pictures, taken at a celebrity wedding reception. The movie stars Catherine Zeta-Jones and Michael Douglas hosted their wedding at the Plaza Hotel, New York in 2000 (see http://abcnews.go.com/Entertainment/story?id=113151&page=1 - .T5b0LI5hyvk >). They granted the British magazine OK! exclusive rights to publish pictures of their marriage. However a third-party photographer managed to gain access to the premises, took pictures and sold them to the competitor magazine Hello! . After Hello! had published the pictures, Zeta-Jones and Douglas sued the magazine in order to receive compensation for their contractual partner OK!. They won the case eventually, being granted damages for breach of confidence ( Douglas v Hello! Ltd . [2003] EWHC 786 at H37). Despite Michael Douglas stressing his irritation about the unlawful intrusion into the pair's privacy, the true reason for the law suit appears to be commercial. The pair had received £1,000,000 from OK! Magazine, but OK! could not make use of the monopoly to publish the couple's pictures (Douglas v Hello! Ltd. [2003] EWHC 786 at para 1). In this context Douglas's statement is an expression of the engrained perception that a celebrity has accomplished great achievements and is therefore entitled to harvest all fruits of celebrity. In times of marketing companies designing publicity strategies, the media featuring individuals in TV or press and individuals creating fan fiction as well as other user-generated content about their “stars”, this assumption seems to show only one of the manifold causes for celebrity.
Since its inception the Internet has facilitated a vast expansion in the creative and industrial industries, but it has also created many new opportunities for the (illegal) exploitation of their intellectual property outputs. The various regulatory attempts to control this exploitation have generated fierce and controversial debates over the very nature of intellectual property itself, especially, as to whether it retains the same characteristics online as it does off-line and whether the existing 200-year-old conceptualisations of it remain valid. This chapter looks at intellectual property crime online with reference to Asia. The first part discusses how the Internet has transformed intellectual property. The second part explores, respectively, the ideas of “virtual theft”, piracy, and theft of virtual artefacts. The third part critically overviews some of the broader issues that are emerging in the debate over intellectual property online.
Over the past two decades, the concept of cyberspace has developed from science fiction into a socially constructed reality (Benedikt, 1991; Gibson, 1984). It is now: ‘a place without physical walls or even physical dimensions’, where ‘interaction occurs as if it happened in the real world and in real-time, but constitutes only a “virtual reality”’ (Byassee, 1995: 199; Tribe, 1991: 15). The inhabitants of cyberspace are a virtual community of ‘social aggregations that emerge from the Net2 when enough people carry on public discussions long enough, with sufficient human feeling, to form webs of personal relationships in cyberspace’ (Rheingold, 1994: 5). Only time will tell whether or not this virtual community will become Saradar and Ravetz’s ‘new civilisation which emerges through our human-computer interface and mediation’ (1996: 1). What is certain is that the Internet creates considerably more opportunities for individuals to come into contact and to interact with others socially, economically and politically. Furthermore, as the ‘intellectual land grab’ (Boyle, 1996: 125) takes place for cyberspace, the emerging political economy of information capital will cause interests to become established and new distinctions to emerge between acceptable and deviant behaviour. Not only do new risk communities now accompany the old, but many previously acceptable activities have become relabelled as undesirable and now sit next to those behaviours which have been traditionally accepted as undesirable.
Who owns your genetic information? Might it be the doctors who, in the course of removing your spleen, decode a few cells and turn them into a patented product? In 1990 the Supreme Court of California said yes, marking another milestone on the information superhighway. This extraordinary case is one of the many that James Boyle takes up in Shamans, Software, and Spleens, a timely look at the infinitely tricky problems posed by the information society. Discussing topics ranging from blackmail and insider trading to artificial intelligence (with good-humored stops in microeconomics, intellectual property, and cultural studies along the way), Boyle has produced a work that can fairly be called the first social theory of the information age.Now more than ever, information is power, and questions about who owns it, who controls it, and who gets to use it carry powerful implications. These are the questions Boyle explores in matters as diverse as autodialers and direct advertising, electronic bulletin boards and consumer databases, ethno-botany and indigenous pharmaceuticals, the right of publicity (why Johnny Carson owns the phrase "Here's Johnny!"), and the right to privacy (does J. D. Salinger "own" the letters he's sent?). Boyle finds that our ideas about intellectual property rights rest on the notion of the Romantic author--a notion that Boyle maintains is not only outmoded but actually counterproductive, restricting debate, slowing innovation, and widening the gap between rich and poor nations. What emerges from this lively discussion is a compelling argument for relaxing the initial protection of authors' works and expanding the concept of the fair use of information. For those with an interest in the legal, ethical, and economic ramifications of the dissemination of information--in short, for every member of the information society, willing or unwilling--this book makes a case that cannot be ignored.
This article aims at proposing some elements for a grounded theory of the network society. The network society is the social structure characteristic of the Information Age, as tentatively identified by empirical, cross‐cultural investigation. It permeates most societies in the world, in various cultural and institutional manifestations, as the industrial society characterized the social structure of both capitalism and statism for most of the twentieth century.
Social structures are organized around relationships of production/consumption, power, and experience, whose spatio‐temporal configurations constitute cultures. They are enacted, reproduced, and ultimately transformed by social actors, rooted in the social structure, yet freely engaging in conflictive social practices, with unpredictable outcomes. A fundamental feature of social structure in the Information Age is its reliance on networks as the key feature of social morphology. While networks are old forms of social organization, they are now empowered by new information/communication technologies, so that they become able to cope at the same time with flexible decentralization, and with focused decision‐making. The article examines the specific interaction between network morphology and relationships of production/consumption, power, experience, and culture, in the historical making of the emerging social structure at the turn of the Millennium.
