By: Dominique Quaglia

On June 24, 2022, Baz Luhrmann’s Elvis was released in theaters across America.[1] Since then, the film, starring Austin Butler, has grossed more than $280 million in the worldwide box-office, making it the second-highest-grossing music biopic of all time, just behind Bohemian Rhapsody.[2] In addition to its box-office success, Elvis received a 12-minute standing ovation at the Cannes Film Festival, and Butler has received Oscar nomination buzz.[3] Since the movie’s premiere, Elvis Presley’s “streaming and physical-music sales” have increased drastically, with his “year-to-date streaming-on-demand numbers” reaching more than 525 million.[4] However, one month before the movie came out, the Second Circuit ruled that songwriter Hugo Peretti’s heirs could not recover the rights to the song “Can’t Help Falling in Love,” one of Presley’s biggest and most universally known hits.[5]

In 1961, Peretti wrote “Can’t Help Falling in Love,” which was featured in Presley’s film, Blue Hawaii.[6] In 1983, Peretti, along with his wife and daughters, transferred his copyright interest in the song to Julian and Joachim Aberbach.[7] The agreement stated that the Perettis “hereby sell, assign, transfer and deliver to [the Aberbachs and their] successors and assigns, all of their right, title, and interest vested or contingent in” the song.[8] The Aberbach’s subsequently transferred the copyright interest to Authentic Brands Group, “a brand development, marketing, and entertainment company.”[9] At that point, the 1983 agreement with the Aberbach’s became Peretti’s heirs’ “assignment of their rights to the song.”[10] In other words, Peretti’s wife and daughters had sold their “contingent inheritance rights” to the song.[11] In 1986, Peretti passed away, effectively “extinguishing the right he assigned.”[12]

Per the Copyright Act of 1976, the song’s renewal rights “would not vest until the original term of the copyright expired in 1989, 28 years after the copyright was initially secured.”[13] In 1989, Peretti’s widow and heirs renewed the copyright; however, they served Authentic Brands with a notice of termination of the 1983 agreement in 2014.[14] The Second Circuit found that the lower court was correct in determining the termination was invalid and therefore dismissed the case.[15] “While the Copyright Act of 1976 allows heirs to terminate grants made by nonauthors before 1978, it explicitly requires post-1978 grants to have been ‘executed by the author.’”[16] Because Peretti’s heirs were not the songwriters themselves, they could not terminate the copyright agreement, leaving the rights in the hands of Authentic Brands.[17]

The Second Circuit asserted that at the time of the 1983 agreement, it had already been over twenty years since Presley took “Can’t Help Falling in Love” to the top of the charts and “over 100 versions of the song, vocal and instrumental, had been issued.”[18] Therefore, the Peretti family knew or should have known the value of the song they were transferring their copyright interest in.[19] Unfortunately for the family, that value has remained steady over time and has the potential to increase after this year’s release of Baz Luhrmann’s Elvis.[20]

[1] Brooks Barnes, Who is Austin Butler and What Does He Want?, N.Y. Times (May 25, 2022), https://www.nytimes.com/2022/05/25/movies/austin-butler-elvis.html.

[2] Paul Grein, ‘Elvis’ Is the Third-Highest-Grossing Music Biopic Since the 1970s: Here’s the Top 25, Billboard (Sept. 19, 2022), https://www.billboard.com/lists/top-grossing-music-biopics-movies/.

[3] Matt Donnelly et al., ‘Elvis’ Star Austin Butler Thrusts Hops at Cannes, Gaining 12-Minute Standing Ovation, Variety (May 25, 2022, 1:19PM), https://variety.com/2022/film/news/elvis-cannes-standing-ovation-1235277199/; David Browne, Elvis Presley Died 45 Years Ago. Has ‘Elvis; the Movie Finally Revived Him?, Rolling Stone (Aug. 16, 2022),  https://www.rollingstone.com/music/music-features/elvis-presley-dead-movie-austin-butler-1394378/.

[4] Browne, supra note 3.  

[5] Blake Brittain, Songwriter’s Heirs Can’t Reclaim Rights to Elvis Hit, Judge Rules, Reuters (May 4, 2022, 12:02PM), https://www.reuters.com/legal/litigation/songwriters-heirs-cant-reclaim-rights-elvis-hit-judge-rules-2022-05-04/#:~:text=(Reuters)%20%2D%20The%20daughter%20and,U.S.%20appeals%20court%20said%20Wednesday. 

[6] Id.; Grace Lenehan Vaughn, Elvis Presley’s ‘Can’t Help Falling in Love’ Was Inspired by a Classical Song, Wide Open Country (June 10, 2022), https://www.wideopencountry.com/cant-help-falling-in-love/.

[7] Brittain, supra note 5.

[8] Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131, 135 (2d Cir. 2022).

[9] Kyle Jahner, Hugo Peretti Heirs Can’t Reclaim Elvis Song, Second Circuit Says, Bloomberg L. (May 4, 2022, 2:28PM), https://www.bloomberglaw.com/bloomberglawnews/ip-law/XEVTLTEO000000?bna_news_filter=ip-law#jcite;  Bloomberg, https://www.bloomberg.com/profile/company/AUTH:US?leadSource=uverify%20wall (last visited Sept. 29, 2022).

[10] Jahner, supra note 9.  

[11] Id.

[12] Id.

[13] Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131, 135 (2d Cir. 2022).

[14] Id. at 136.

[15] Jahner, supra note 9. 

[16] Id.

[17] Id.

[18] Acuti v. Authentic Brands Grp. LLC, 33 F.4th 131, 143 (2d Cir. 2022).

[19] Id.

[20] Browne, supra note 3 (suggesting Elvis Presley is back, “more than anyone might have possibly expected”).