Elvis Has Left the Courthouse23 Oct, 2002 By: Holly J. Wagner
A Federal Appeals Court has issued an injunction barring the further sale of The Definitive Elvis, an unauthorized DVD collection of Elvis Presley material compiled and released by Passport Video, but the supplier plans to appeal the ruling.
"Passport will be filing an appeal of the lower court's decision to the United States Court of Appeals for the Ninth Circuit, and we are confident that the Ninth Circuit will reverse the order granting the preliminary injunction," the company said in a statement.
The suit against Passport Video and parent company Passport International was jointly filed by EPE, SOFA Entertainment, Leiber & Stoller, the Steve Allen Estate and other rights holders to Presley's work and image.
"It's a very important victory for these rights holders," said plaintiffs' attorney George Hedges, of the Los Angeles-based law firm of Quinn Emanuel Urquhart Oliver & Hedges. "The defendant maintained that the use of copyrighted materials constituted fair use under the copyright laws. Our position is that their appropriation of the heart of these legendary performances constituted a classic case of copyright infringement. The plaintiffs are proceeding with our case for damages."
The Definitive Elvis features extensive use of images of Elvis Presley from television, film, live and recorded performances, as well as still images.
"A number of critics, both here and abroad, have called The Definitive Elvis the most important and comprehensive biographical documentary produced about the life of Elvis Presley,” contends the Passport statement. “Over 99 percent of The Definitive Elvis consists of original footage created and owned by Passport international. Over 230 interviews with the people in Elvis' life were conducted over a two-year period.”
The plaintiffs claimed victory nonetheless.
"We're pleased, obviously we feel vindicated," said Gary Hovey, VP of Entertainment and Music Publishing for Elvis Presley Enterprises, Inc. "Passport had taken the position that they could just take anyone's copyright work and use it without compensating the rights holder, which in our opinion is ridiculous. For someone to just take material is piracy."
Among the contested material used in the video set were Presley performances from the Ed Sullivan Show, owned by SOFA Entertainment. The set also includes several songs from the legendary songwriting team of Jerry Leiber and Mike Stoller, including "Jailhouse Rock," "King Creole," "Loving You" and "Girls, Girls, Girls," all allegedly used without permission.
"We are very pleased with Judge Lew's decision. Writing songs is our livelihood," Leiber and Stoller announced jointly. "Those who choose to steal rather than license our works have once again been put on notice that such actions are not only unacceptable - they are unlawful."
Passport attorneys contend that less than 1 percent of the material on the set is someone else's copyrighted work and that is used to illustrate the documentary.
“Passport made very limited, transformative, and we think under the law, fair use of the less than 1 percent that constitutes plaintiffs' copyrighted material,” the supplier stated. “For the Estate of Elvis Presley and the other plaintiffs to describe Passport's use of their material as 'unlawful' or 'piracy' under these circumstances is ludicrous and ignores the important First Amendment considerations present here.”