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'?"
Even so, one person's cheese is often another person's treasure, and that seems to work both ways in the case of Presley Enterprises. A glance through its slick 1996 Elvis Presley Catalog reveals some products of arguable class and historic worth, such as special edition framed gold records, poster reproductions from classic Elvis movies, Elvis CDs and Elvis books. But there are also hip-swaying Elvis lamps and clocks, Elvis refrigerator magnets, Elvis sunglasses, Elvis accent pillows, Elvis wrist watches, Elvis welcome mats that warn "Don't Step on My Blue Suede Shoes," even a regulation-size baseball with a copy of Elvis's signature. Many items are the sort you might see browsing at the Disney store, and a percentage of them should fit someone's idea of "cheesy, tacky"-- even if it isn't Webner's definition.
Of course, that's just the merchandise ordered directly from Graceland. Standards of good taste have been known to be less stringent when it comes to the numerous novelty peddlers licensed by Presley Enterprises.
"My favorite is the women's panties with Elvis's name on them," says Capece, who chuckles knowingly when presented with Webner's "cheesy, tacky" comment, as well as the statement made to the Press last year by local Presley Enterprises attorney Paul Van Slyke, who went so far as to cite "wholesomeness" in defending the sanctity of the Presley image.
If wholesome is what Presley Enterprises is striving for, says copyright expert Band, it has some work ahead for itself.
"They say they don't want the name of Elvis Presley associated with a bar," he says. "But given that he [supposedly] died of a drug overdose, it's sort of hard to make that argument. Their beef really isn't that a bar is using it; their beef is that a bar is using it without paying them."
Capece, it appears, has some momentum in his favor going into the case. A motion Presley Enterprises filed in September for a summary judgment in its favor was rejected by the court, as was an October motion by the plaintiff to reconsider the previous denial. Still, Presley Enterprises's Webner remains philosophical.
"The rules of practice give you a couple bites at the apple -- some of us take them and some of us don't," he says. "This isn't going to be a lengthy trial; this isn't the O.J. Simpson trial."
In a 33-page memorandum explaining her decision, U.S. Magistrate Mary Milloy cited a number of points that could weaken Presley Enterprises's case. First, there was the fact that Capece registered for and was issued a federal trademark on the Velvet Elvis name when he opened the club at its original Kipling Street location in 1990. Milloy also pointed out that Capece, by tacking the "Velvet" to the front of his bar's name, might be considered to have taken a "reasonable precaution" to ensure his business is not confused with anything licensed by Presley Enterprises. The plaintiff's attorneys did not present evidence that anyone has ever mistaken the Velvet Elvis for an estate-sanctioned establishment.
Presley Enterprises contends that the Velvet Elvis poses unfair competition to Graceland-owned businesses. But Milloy asserted in her memo that Graceland currently owns nothing similar to Capece's nightclub operation -- no bars or venues featuring live music. That is scheduled to change, though, when a new Presley Enterprises-licensed nightclub, Elvis Presley's Memphis, opens on Beale Street in 1997, which could also explain why the estate is coming down so hard on the Velvet Elvis.
"There are thoughts of doing more; we certainly want to hold that option open," says Webner. "When we open something in Houston, we certainly don't want a Velvet Elvis right next door to it."
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As it turns out, Capece has similar plans for the Velvet Elvis. He's preparing to expand his small chain outside of Texas. "We're looking at funding that would give us four more locations; the first will be Denver," says Capece. "From a purely business standpoint, there's no doubt that [fighting the lawsuit] is worth it, because the name does carry some weight."
Besides, Capece's got the black velvet Elvis painting to think about. He had to go all the way to Juarez to buy it, and since Presley Enterprises cracked down on their sale, he'd be hard-pressed to find another one like it. Who knows? The abominable thing might be a collectors' item some day.
"It's become a sort of folklore thing now," says Capece.
And where would the painting go if he has to remove it from its cherished spot over the Velvet Elvis bandstand?
"Maybe I'll hang it over my mantel at home.