A federal appeals court has ruled that Marilyn Monroe’s estate gave up its publicity rights by claiming Monroe was a resident of New York to avoid California taxes, and therefore cannot now stop two companies from selling images of the iconic actress.
The estate sued Milton H. Green Archives and Tom Kelley Studios in 2005 over images being sold and advertised through the companies. The companies countersued, seeking a declaration from the court that the estate had forfeited publicity rights to Monroe’s image.
Remember publicity rights grant “an individual the right to control commercial use of his or her identity, although the specifics do vary by state.”
Recently, the Ninth Circuit Court of Appeals sided with the companies and found that the estate had no publicity rights under California law because for forty years, it claimed Monroe was a resident of New York. That position was taken, according to the court, in order to avoid inheritance taxes in California.
In the more recent legal proceeding, however, Monroe’s estate claimed she was a resident of California in order to secure its publicity rights in her image; California law allows the heirs of deceased celebrities to retain control over the stars’ images and names. New York, on the other hand, has no such provision.
Circuit Judge Kim Wardlaw wrote (PDF):
Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, ‘If you’re going to be two-faced, at least make one of them pretty.’ There is nothing pretty in Monroe LLC’s about-face on the issue of domicile.
SFGate.com has reported that Terri DiPaolo, an attorney for the Monroe estate has noted that the ruling would not affect the estate’s right to control Monroe’s name and image under federal trademark law.
Exactly how much is at stake in this case? Monroe was named number three on the “Top-Earning Dead Celebrities” list by Forbes in 2011, bringing in about $27 million.
What do you think of this decision?