Celebrity Name or Likeness

Post-Mortem Rights. The U.S. District Court for the Southern District of New York held that a residuary clause in the will of actress Marilyn Monroe, who died in 1962, did not transfer a post-mortem right-of-publicity. Shaw Family Archives Ltd.(SFA) v. CMG Worldwide Inc., 05 Civ. 3939. The residuary clause in Monroe's will referred to: 'All the rest, residue and remainder of my estate, both real and personal of whatsoever nature and whatsoever situate, of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any power of appointment by Will at the time of my death.' Monroe left her estate to acting coach Lee Strasberg, who left his estate to his wife Anna when he died in 1982. Marilyn Monroe LLC (MMLLC) and the licensing agency CMG Worldwide sued the heirs of Monroe photographer Sam Shaw in Indiana federal district court over the retail sale in the state of a T-shirt with a Monroe photo and over a Web site. The case was transferred to New York federal court and consolidated with a declaratory suit filed by Shaw Family Archives in the latter district.

The New York federal district court noted that SFA argued: '[O]nly property actually owned by a testator at the time of her death can be devised by will. Since neither New York nor California (the only possible domiciles of Ms. Monroe at the time of her death) ' nor for that matter, Indiana ' recognized descendible postmortem publicity rights at the time of Ms. Monroe's death in 1962 [New York still doesn't recognize a descendible publicity right], she could not transfer any such rights through her will, and MMLLC cannot be a successor-in-interest to them. Moreover, the SFA parties contend, neither the California nor the Indiana right of publicity statutes allow for the transfer of the publicity rights they recognize through the wills of personalities who were already deceased at the time of their enactment. The court agrees.'

False-Sponsorship Claim. The U.S. District Court for the Western District of Wisconsin ruled against actor Andy Griffith in his federal Lanham Act suit against an individual who changed his name to 'Andy Griffith' and ran for county sheriff. Griffith v. Fenrick, 06-C-635-S. The defendant had used 'Andy Griffith for Sheriff' on campaign goods and cited the town of Mayberry, NC, from the popular 'Andy Griffith' 1960s TV show in his political campaign. Actor Griffith lent his name to North Carolina political campaigns.

The district court noted: 'It is likely that defendant's use of the name Andy Griffith in his campaign would cause potential voters to connect it to the famous actor and to his famous sheriff character. However, there is no basis or evidence to suggest the leap to confusion as to sponsorship by plaintiff ' Defendant's speech was not commercial. The use of the Andy Griffith name was not to propose a commercial transaction but to seek elective office, fundamental First Amendment protected speech.'

The court also found that the amount in controversy did not reach the $75,000 required for federal jurisdiction over plaintiff Griffith's related state-law claims. The actor had earned $100,000 in merchandising and licensing fees in the prior 18 years, which averaged only $5600 per year. In addition, the court explained: '[T]here is neither a factual nor logical basis to suppose that the demand for Mayberry memorabilia will be dampened by plaintiff's run for sheriff.' The court further noted: '[W]hether a name can be legally changed for political advantage and whether a person is entitled to pursue election under a legally changed name, notwithstanding the prohibitions of [Wis. Stat. Sec.] 995.50, are issues best resolved by the Wisconsin courts.'

Post-Mortem Rights. The U.S. District Court for the Southern District of New York held that a residuary clause in the will of actress Marilyn Monroe, who died in 1962, did not transfer a post-mortem right-of-publicity. Shaw Family Archives Ltd.(SFA) v. CMG Worldwide Inc., 05 Civ. 3939. The residuary clause in Monroe's will referred to: 'All the rest, residue and remainder of my estate, both real and personal of whatsoever nature and whatsoever situate, of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any power of appointment by Will at the time of my death.' Monroe left her estate to acting coach Lee Strasberg, who left his estate to his wife Anna when he died in 1982. Marilyn Monroe LLC (MMLLC) and the licensing agency CMG Worldwide sued the heirs of Monroe photographer Sam Shaw in Indiana federal district court over the retail sale in the state of a T-shirt with a Monroe photo and over a Web site. The case was transferred to New York federal court and consolidated with a declaratory suit filed by Shaw Family Archives in the latter district.

The New York federal district court noted that SFA argued: '[O]nly property actually owned by a testator at the time of her death can be devised by will. Since neither New York nor California (the only possible domiciles of Ms. Monroe at the time of her death) ' nor for that matter, Indiana ' recognized descendible postmortem publicity rights at the time of Ms. Monroe's death in 1962 [New York still doesn't recognize a descendible publicity right], she could not transfer any such rights through her will, and MMLLC cannot be a successor-in-interest to them. Moreover, the SFA parties contend, neither the California nor the Indiana right of publicity statutes allow for the transfer of the publicity rights they recognize through the wills of personalities who were already deceased at the time of their enactment. The court agrees.'