Marilyn Monroe's Right of Publicity Not Descendible

The U.S. Court of Appeals for the Ninth Circuit ruled that the heirs to Marilyn Monroe's estate did not inherit the rights to her publicity because she was a resident of New York, where such rights are not recognized posthumously. Calling the dispute a “textbook case for applying judicial estoppel,” the Ninth Circuit found that the estate's heirs could not claim that Monroe was a resident of California when she died in 1962, because they had maintained for decades in other court proceedings that she had lived in New York, where the right of publicity is not descendible. Milton H. Green Archives Inc. v. Marilyn Monroe LLC, 08-56471.

“Monroe's representatives took one position on Monroe's domicile at death for 40 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,” Circuit Judge Kim McLane Wardlaw wrote. “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.”

The case was brought by Marilyn Monroe LLC, an entity managed by Anna Strasberg, widow of the actress's acting coach Lee Strasberg, against the holders of the archives of Monroe photographers. Lee Strasberg, who died in 1982, inherited 75% of Monroe's estate. In 2001, a New York probate court transferred all of the estate's assets to the newly formed Marilyn Monroe LLC.

Terri DiPaolo, a solo practitioner in New York who serves as general counsel for The Estate of Marilyn Monroe LLC and Authentic Brands Group LLC, both of which acquired the estate's rights from Marilyn Monroe LLC in September 2010, issued an e-mail statement asserting that the Ninth Circuit's ruling doesn't change anything.

“As with the decisions before it, today's decision impacts only the right of publicity under state law,” DiPaolo wrote, noting that the estate remained entitled to assert rights under common law and the U.S. Lanham Act, the federal trademark law. “All federal rights associated with Marilyn Monroe's signature, name, likeness, image, voice and persona are still valid and enforceable. As such, the estate still enjoys the exclusive right to use Marilyn Monroe's signature, name, likeness, image, voice or anything else associated with her persona.”

Theodore Minch of Sovich Minch in McCordsville, IN, represented the estate's licensee CMG Worldwide Inc. Surjit Soni of The Soni Law Firm in Pasadena, CA, represented The Milton Greene Archives Inc. and Tom Kelley Studios Inc., which hold the archives of those photographers.

In 2005, Marilyn Monroe LLC and CMG Worldwide sued the archives of Greene and Kelly in federal court in the U.S. District Court for the Southern District of Indiana, claiming they were illegally exploiting the actress's name and likeness through the sale of their photos. The Greene archives responded by suing in federal court in Los Angeles, arguing that the estate's heirs were not entitled to Monroe's right of publicity because she lived in New York at the time of her death. The cases were consolidated in Los Angeles before U.S. District Judge Margaret Morrow.

On May 14, 2007, on a summary judgment motion, Morrow threw out the estate's case, concluding that no right of publicity existed in California, New York or Indiana at the time of Monroe's death. In response to that ruling, then-California State Senator Sheila Kuehl, herself a former actress, successfully pushed to amend the state's law so that heirs to the estates of individuals who died before Jan. 1, 1985, could assert a right of publicity posthumously.

Marilyn Monroe LLC asked Judge Morrow to reconsider her ruling following the change in the law. In a second decision, on July 31, 2008, Morrow concluded that Marilyn Monroe LLC would control a right to the actress's publicity had she lived in California. But Morrow granted summary judgment again, concluding that Monroe had lived in New York, leaving her right of publicity inaccessible to the estate.

Affirming, the Ninth Circuit noted in its recent decision that Monroe lawyer Aaron Frosch, in probate proceedings in New York that ended up lasting 40 years, had argued extensively soon after Monroe's death that the actress lived in New York, in order to avoid paying California's estate taxes. In 1961, Monroe had traveled to California, where Frosch had said she purchased a house in 1962 while filming Something's Got to Give. She died in that house later that year.

Among other things, Frosch had insisted that Monroe maintained her fully furnished New York apartment, including a maid who looked after the place, while in California. The Ninth Circuit was not persuaded by Marilyn Monroe LLC's assertion that Frosch's representations to the court had been “riddled with blatant inaccuracies.”

For one thing, the appeals court noted, Strasberg adopted Frosch's argument in 1992 while defending Monroe's estate in a lawsuit brought in federal court in Hawaii by a woman who claimed to be the actress's biological child. The woman asserted that, under California law, she was entitled to 50% of the estate. In disputing the assertion, Strasberg had argued that Monroe was living in New York at the time of her death and that New York law therefore applied.

The U.S. Court of Appeals for the Ninth Circuit ruled that the heirs to Marilyn Monroe's estate did not inherit the rights to her publicity because she was a resident of New York, where such rights are not recognized posthumously. Calling the dispute a “textbook case for applying judicial estoppel,” the Ninth Circuit found that the estate's heirs could not claim that Monroe was a resident of California when she died in 1962, because they had maintained for decades in other court proceedings that she had lived in New York, where the right of publicity is not descendible. Milton H. Green Archives Inc. v. Marilyn Monroe LLC, 08-56471.

“Monroe's representatives took one position on Monroe's domicile at death for 40 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,” Circuit Judge Kim McLane Wardlaw wrote. “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.”

The case was brought by Marilyn Monroe LLC, an entity managed by Anna Strasberg, widow of the actress's acting coach Lee Strasberg, against the holders of the archives of Monroe photographers. Lee Strasberg, who died in 1982, inherited 75% of Monroe's estate. In 2001, a New York probate court transferred all of the estate's assets to the newly formed Marilyn Monroe LLC.

Terri DiPaolo, a solo practitioner in New York who serves as general counsel for The Estate of Marilyn Monroe LLC and Authentic Brands Group LLC, both of which acquired the estate's rights from Marilyn Monroe LLC in September 2010, issued an e-mail statement asserting that the Ninth Circuit's ruling doesn't change anything.

“As with the decisions before it, today's decision impacts only the right of publicity under state law,” DiPaolo wrote, noting that the estate remained entitled to assert rights under common law and the U.S. Lanham Act, the federal trademark law. “All federal rights associated with Marilyn Monroe's signature, name, likeness, image, voice and persona are still valid and enforceable. As such, the estate still enjoys the exclusive right to use Marilyn Monroe's signature, name, likeness, image, voice or anything else associated with her persona.”

Theodore Minch of Sovich Minch in McCordsville, IN, represented the estate's licensee CMG Worldwide Inc. Surjit Soni of The Soni Law Firm in Pasadena, CA, represented The Milton Greene Archives Inc. and Tom Kelley Studios Inc., which hold the archives of those photographers.

In 2005, Marilyn Monroe LLC and CMG Worldwide sued the archives of Greene and Kelly in federal court in the U.S. District Court for the Southern District of Indiana, claiming they were illegally exploiting the actress's name and likeness through the sale of their photos. The Greene archives responded by suing in federal court in Los Angeles, arguing that the estate's heirs were not entitled to Monroe's right of publicity because she lived in New York at the time of her death. The cases were consolidated in Los Angeles before U.S. District Judge Margaret Morrow.

On May 14, 2007, on a summary judgment motion, Morrow threw out the estate's case, concluding that no right of publicity existed in California, New York or Indiana at the time of Monroe's death. In response to that ruling, then-California State Senator Sheila Kuehl, herself a former actress, successfully pushed to amend the state's law so that heirs to the estates of individuals who died before Jan. 1, 1985, could assert a right of publicity posthumously.

Marilyn Monroe LLC asked Judge Morrow to reconsider her ruling following the change in the law. In a second decision, on July 31, 2008, Morrow concluded that Marilyn Monroe LLC would control a right to the actress's publicity had she lived in California. But Morrow granted summary judgment again, concluding that Monroe had lived in New York, leaving her right of publicity inaccessible to the estate.

Affirming, the Ninth Circuit noted in its recent decision that Monroe lawyer Aaron Frosch, in probate proceedings in New York that ended up lasting 40 years, had argued extensively soon after Monroe's death that the actress lived in New York, in order to avoid paying California's estate taxes. In 1961, Monroe had traveled to California, where Frosch had said she purchased a house in 1962 while filming Something's Got to Give. She died in that house later that year.

Among other things, Frosch had insisted that Monroe maintained her fully furnished New York apartment, including a maid who looked after the place, while in California. The Ninth Circuit was not persuaded by Marilyn Monroe LLC's assertion that Frosch's representations to the court had been “riddled with blatant inaccuracies.”

For one thing, the appeals court noted, Strasberg adopted Frosch's argument in 1992 while defending Monroe's estate in a lawsuit brought in federal court in Hawaii by a woman who claimed to be the actress's biological child. The woman asserted that, under California law, she was entitled to 50% of the estate. In disputing the assertion, Strasberg had argued that Monroe was living in New York at the time of her death and that New York law therefore applied.