By Aaron Reiss
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By Dianna Wray
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By Camilo Smith
By Craig Malisow
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In essence, the solution to Barry Capece's legal troubles boils down to four letters and a tacky piece of side-of-the-road art. If he wanted to, the owner of the Velvet Elvis nightclub on Richmond Avenue could end his two-year squabble against the almighty Elvis Presley Enterprises Inc. with a pair of simple acts: lopping off the "lvis" from the Velvet Elvis name and removing his prized black velvet Elvis painting from the bar's premises.
To avoid further grief, Capece did half as much earlier this year when he opened a satellite club in Dallas and christened it "the Velvet E." But he hasn't caved on Presley Enterprises's other demand -- the Velvet E houses its very own black velvet Presley painting. Like the original Velvet Elvis, the new bar is a gallery of kitsch, its interior adorned with low-end novelties such as lava lamps, angel ornaments and multiple black velvet portraits of various show-biz personages. And like the Houston establishment, people go there to eat, drink, smoke cigars and listen to live blues and rock and roll -- not, insists Capece, to bow before his plush portrait of the King.
Capece says business is good at his latest venture, even without the "Elvis" in the moniker. So would it kill him to meet Presley Enterprises's demands regarding his Houston bar? Hardly. But the truth is, the lawyer-turned-nightlife-entrepreneur isn't finished enjoying himself yet. And the real laughs may be forthcoming when Presley Enterprises's lawsuit against Capece goes to trial in federal court on November 25.
"We're going to have some fun with this," promises Capece. "Everyone is taking this thing way too seriously. We even tried to subpoena Priscilla Presley, but I have a feeling she's not going to make it."
Until lately, Capece could afford to take his dispute with Presley Enterprises lightly, since his insurance company was footing the cost of his legal bills. But just recently, Capece learned that his insurer has gone out of business. So from now on, expenses come out of his own pocket. Still, that doesn't seem to bother Capece, who, in addition to never having set foot in Graceland, isn't even much of an Elvis fan. "I told that to the Presley lawyers, and they were absolutely dumbfounded," he says. "It was almost like, what kind of American am I if I haven't been to Graceland?"
One gets the impression Capece is sticking to his guns for reasons a little less tangible than his financial livelihood -- and a little more significant than a few good laughs. He admits that he's wrapped up in the romance of the fight.
"We're just a small bar. We're trying to do a satirical, off-the-wall, really gaudy, kinda funny club," says Capece, who opened the Velvet Elvis six years ago. "The name 'the Velvet Elvis' is just the name of the painting; that's the absolute truth. There is no connection with Elvis Presley. It's a cheesy, funny, whimsical name, and that's what we wanted. We're a parody of American pop culture."
As you might imagine, Presley Enterprises bosses at Graceland, the non-Velvet Elvis's estate, aren't buying it. True, the estate acknowledges, parody is a free-speech right protected under the First Amendment, but only when it's not used to make a buck.
"There is a line -- where it is often unclear," says Jonathan Band, a copyright and trademark expert out of Washington, D.C. "The minute you start getting into the commercial areas, it starts to get blurry. It's using the name where they might be in the most trouble."
Henry Newinn agrees. As president of the Houston-based Asian Worldwide Elvis Fan Club, he's been to the Velvet Elvis on occasion, and he doesn't like what sees. Particularly distressing to Newinn (aside from the name, of course) are the pictures of naked women sharing wall space with the velvet Presley painting. "Why didn't they just call it the Velvet Barry?" he asks.
Presley Enterprises has an equally humorless fleet of attorneys charged with tracking down and suing any unlicensed party who might be profiting from Presley's name, likeness or image. Essentially, if someone is benefiting financially from Elvis and that someone is not the King himself or his heirs, a litigated tussle with Presley Enterprises could be in his future -- unless, of course, he's entered into a licensing agreement with corporation. All profits from such licensing deals go to Elvis's daughter, Lisa Marie, whose mother, Priscilla, is in charge of the Graceland estate.
It took them almost five years to do it, but Presley Enterprises attorneys finally got around to Capece and the Velvet Elvis in early 1995. They're suing him for infringement upon the "Elvis" and "Elvis Presley" trademarks, unfair competition and violating the estate's "publicity rights" to the Elvis name.
The estate seeks unspecified damages, a name change and all references to the King (which as of now, Capece says, includes only the painting and one Elvis CD in the bar's jukebox) removed from the club.
"It's not about money," says Presley Enterprises's Washington, D.C.-based at- torney Mack Webner. "It's about controlling the name, image and likeness of Elvis Presley. We have extensive quality control on products that bear the name. This kind of thing reduces their value. As Mr. Capece keeps saying, 'It's a cheesy, tacky bar.' If we allow Capece to do 'cheesy, tacky,' then what's to keep others from doing 'cheesy, tacky'?"