Judge rules Elvis guitar belongs to USD

A federal judge ruled this morning that a guitar played by Elvis Presley rightfully belongs to the National Music Museum at the University of South Dakota and not a Memphis-based memorabilia collector.

The decision means that the museum will not have to turn over the guitar to collector Larry Moss, who sued both the museum and Robert Johnson, a broker who negotiated the deal that led to the museum acquiring the guitar.

Moss argued that he had a deal in 2008 with Johnson to purchase the Martin D-35 guitar, which the rock icon played on his final tour in 1977. The guitar was damaged during a show in St. Petersburg, Fla., and Presley gave it to a fan. He died six months later.

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But the guitar, one of several instruments negotiated between Moss and Johnson, was never delivered to Johnson. Nor did money change hands for that guitar, although Moss did pay Johnson $70,000 for two other guitars.

During a trial last August, Moss testified that the Elvis guitar was also part of the deal. But Judge Karen Schreier ruled that under Tennessee and South Dakota law, the title to a good does not pass until delivery is made.

“Here,” she wrote, “Johnson never delivered the Martin D-35 guitar to Moss. Because Johnson never delivered the guitar to Moss, Moss never acquired title to the Martin D-35.”

Based on correspondence between the two, Schreier ruled that the D-35 was one part of two separate deals negotiated between 2007 and 2010 – one for the two guitars Moss did receive and the other which included the Martin D-35 that was never completed.

“Moss knew he would not own the Martin D-35 until Johnson delivered it and Moss paid him for it,” Schreier wrote.

In 2012, Moss negotiated a deal with the museum worth $250,000 for a package of instruments that included the Elvis guitar. During the trial last summer, museum board member Scott Lawrence testified that the Elvis guitar was the key part of the package. The museum hoped Elvis’ broad appeal would help attract visitors.

Cleveland Johnson, the museum’s director, said they were “delighted” by the ruling.

“The professional standards we applied in acquiring this important instrument followed the best practices of our accrediting organization, the American Alliance of Museums,” he said in an email. “This case has made us especially aware, however, of the larger question of ‘provenance’ with which the entire museum community grapples. Knowing the ownership history of the objects entering Museum collections is becoming ever more vital, not only for the educational value of that information, but for legal, ethical, and moral reasons.”

“As a non-profit organization,” he added, “of course, we were pained by the expense required to protect this important instrument in our collection, but we’re thrilled that our further investment will allow the Elvis guitar to remain in the public’s eye at the NMM for the learning and enjoyment of our future visitors.”

Randy Fishman, a lawyer who represented Moss, said he was reviewing the decision to make a determination on how to proceed.

"Obviously, we were disappointed," he said.