The Lasting Effect Of Star Power

IN 1962, when Marilyn Monroe was found dead of an overdose at the age of 36, it would have been hard to imagine that 45 years later she would still be earning millions every year. As arguably the most iconic sex symbol of the 20th century, Monroe has been used to sell everything from handbags and T-shirts to expensive bottles of wine and perfume. Companies routinely pay top dollar to have her image grace their advertising campaigns. In the most recent list by Forbes of “Top-Earning Dead celebrities,” Monroe captured the ninth spot with annual earnings last year alone of $8 million. But who profits from all
this merchandising revenue and, perhaps more importantly, who should?

Until recently, the beneficiaries of Monroe’s residuary estate have been cashing in on the licensing of her name and likeness. But this past May, courts on opposite sides of the country, California and New York, ruled that these beneficiaries, after all these years, are not in fact the legal owners of Monroe’s right of publicity. Before examining the facts and rulings of these cases, it is instructive to review the terms of Monroe’s will as well as the rules regarding the right of publicity and its descendibility.

Monroe’s Will

Monroe’s will was signed the year before she died, and in it she provided for various pre-residuary bequests to friends and family members. While she did not specifically bequeath or mention her right of publicity in the will, Monroe left 25 percent of her residuary estate to her psychoanalyst, Dr. Marianne Kris, to be used to further the work of psychiatric institutionsselected by Dr. Kris, and the remaining 75 percent to her acting coach, Lee Strasberg. When Dr. Kris died in 1980, she left her share to the Anna Freud Centre, a children’s psychiatric institute in London. Lee Strasberg died in 1982, and his share then passed to his widow, Anna Strasberg. Monroe’s lawyer, Aaron Frosch, was named as executor of the will, and he served until his death in 1989, at which point Anna Strasberg was appointed as his successor.

In 2001, the New York County Surrogate’s Court authorized Anna Strasberg to close the estate and transfer the assets to a Delaware corporation known as Marilyn Monroe LLC (MMLLC). MMLLC holds and manages all of Monroe’s intellectual property, including her right of publicity. The licensing agent for MMLLC is CMG Worldwide, an Indiana company that markets an impressive roster of living and deceased celebrities, including such legends as James Dean and Babe Ruth and living actors such as Sophia Loren and Mickey Rooney.

The right of publicity has been described as “[t]he right of an individual, especially a public figure or a celebrity, to control the commercial value and exploitation of his name or picture or likeness and to prevent others from unfairly appropriating this value for their commercial benefit.” The right of publicity is governed primarily by state law, and while it is clearly enforceable during an individual’s lifetime, states differ over whether the right is descendible.

Much of the debate among the states has focused on whether the right of publicity is properly characterized as a property right, which is transferable at death, or as a privacy right which is personal to its owner and therefore is extinguished upon death. At least 16 states currently recognize a postmortem right of publicity under common law and/or by statutes that explicitly provide for a right that survives death for a specified number of years. New York is one of the states that has specifically rejected any descendible right of publicity, while other states, including California, Indiana and Tennessee, have recognized a postmortem right by statute.

The California law, enacted in 1984, allows a personality to transfer his or her right of publicity during life or at death, with the right lasting for 70 years after the personality’s death. Indiana first recognized a freely transferable and descendible right of publicity in 1994, when it passed the Indiana Right of Publicity Act. The statute provides for the right to survive for 100 years after a personality’s death, and purports to apply to any act or event that occurs within Indiana, regardless of the personality’s domicile or residence. Not surprisingly, Elvis Presley’s home state of Tennessee currently has one of the most expansive laws in this area—its statute grants a postmortem right of publicity that extends in perpetuity as long as the right is exploited continuously. Under prevailing conflicts of law principles, the existence of a postmortem right of publicity should be determined by the law of the decedent’s domicile. Interestingly, the issue of whether Monroe was domiciled in New York or California at the time of her death has never been fully resolved. In the recent decisions, however, both courts held that it was not necessary to resolve the long-standing factual dispute over Monroe’s domicile because the rulings would be the same under New York and California law.

New York: Seven Year Itch

The first decision was issued by the Southern District of New York in the case of Shaw Family Archives Ltd. v. CMG Worldwide, Inc. The dispute pitted MMLLC and CMG (the Monroe Estate) against Shaw Family Archives (SFA), a company formed by the children of the late photographer, Sam Shaw. Shaw photographed Monroe throughout most of the actress’ career, and his work on the film “The Seven Year Itch” created the canonical images of Monroe standing over the subway grate. The Monroe Estate sued SFA for violation of the Indiana Right of Publicity Act, stemming, in part, from the alleged sale at a Target store in Indiana of a T-shirt bearing a picture of Monroe credited to SFA. In asserting its claim, the Monroe Estate relied on the Indiana statute because it provides a forum for right of publicity claims involving any act that occurs within Indiana, regardless of the domicile of the personality. Thus, the sale of a T-shirt was sufficient to invoke the statute. SFA’s position was that, even if a postmortem right of publicity in Monroe’s name and likeness existed, the owners of that right could not be the residuary beneficiaries under her will. The court agreed with SFA, stating that under both
New York and California law a testator can only dispose of property that he or she owns at the time of death. When Monroe died in 1962, neither New York nor California (or even Indiana, for that matter) recognized a postmortem right of publicity. Therefore, the court concluded that Monroe had no testamentary capacity to transfer property that did not exist at her death.

Relying on the well-settled rule that testamentary intent should be paramount in construing a will, the Monroe Estate maintained that the language of the will revealed an intent to dispose of property acquired after death. Specifically, the Monroe Estate pointed out a reference in the residuary clause of the will  to property “to which I shall in any way beentitled.” The court rejected this construction,concluding that “this boilerplate language is much too slender a reed on which to hang a devise of postmortem publicity rights that did not come into being until 22 years after [Monroe’s] death.” Moreover, even if it could be established that Monroe had the requisite intent, the court concluded that “the effect would be to render the disposition invalid, because she had no legal right to dispose of property that did not exist at the time of her death.”

The Monroe Estate also tried to find support for its position in a relatively new section of the Uniform Probate Code which states that a will “may provide for the passage of all property that the testator owns at death and property acquired by the estate after the testator’s death.” The comment to this section indicates that a bonus awarded to an employee after  death is an example of after-acquired property that would be covered by the provision. The court did not consider whether Monroe’s right of publicity could qualify as after-acquired property because neither New York nor California has  adopted the Uniform Probate Code, and in any event, the Uniform Probate Code had not even been promulgated at the time of Monroe’s death—the relevant time for construction of a will.

The Monroe Estate’s last and perhaps weakest argument was based on the general principle of probate law that the residuary clause of a will should be construed broadly to avoid intestacy. While recognizing the principle, the court dismissed the argument because it is clear that the principle does not apply unless and until it has first been proven that the decedent  had an actual interest capable of being disposed of under the residuary clause. In reaching its decision, the court noted that even if the California or Indiana statutes were applicable, the residuary beneficiaries of Monroe’s will would not be the owners of Monroe’s right of publicity. The California statute provides that if a deceased personality does not transfer his or her right of publicity before death, by contract or by means of a trust or will, then the right vests after death in specified statutory heirs: the surviving spouse and children or, if there are none, the surviving parents. 

Similarly, the Indiana statute provides for an alternate vesting scheme where a personality dies without disposing of the postmortem right of publicity. Under the Indiana law, the right passes directly to the personality’s intestate distributees, determined under the laws of the personality’s domicile. Thus, the court ruled that “even if a postmortem right of publicity
in Marilyn Monroe’s persona could have been created after her death, neither of the statutes that arguably bestowed that right allows for it to be transferred through the will of a ‘personality’ who, like Ms. Monroe, was already deceased at the time of the statute’s enactment.”

California: Red Velvet

Less than two weeks after the New York decision was handed down, the District Court for the Central District of California issued its decision in the case of Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., No. 05 Civ. 2200 (C.D.C.A. May 14, 2007).18 Once again, the dispute was between the Monroe Estate and the heirs of photographers who owned the copyrights to many famous images of Monroe. One of the photographers was Tom Kelley Sr., who in 1949 had a then 22-year-old Marilyn pose nude against a red velvet background for a calendar called “Miss Golden Dreams.” These portraits, which were shocking at the time, became known as the “Red Velvet Collection.” One of them went on to launch a new men’s magazine that hit newsstands in 1953 with Marilyn as the first “Sweetheart of the Month” centerfold. The magazine was Playboy, and Marilyn’s alluring pose, reclining on a red velvet drape, would become an iconic image symbolizing the sexual revolution in America that soon followed.

The California court considered virtually the same arguments that the New York court considered and reached the same conclusion, but the California decision contains additional analysis. For example, there is a detailed rebuttal to the Monroe Estate’s contention that Monroe’s postmortem right of publicity did in fact exist at the time of her death, but was simply “remote” or “unknown.” The Monroe Estate asserted that when the Indiana and California legislatures enacted their statutes, the postmortem right of publicity that was inchoate at Monroe’s death vested in her estate, which remained open until 2001.

Rejecting this argument, the California court determined that Monroe’s postmortem right of publicity in 1962 was at best an expectancy which by definition “describes the interest of a person who merely foresees that he might receive a future  beneficence, such as the interest of an heir apparent.” Because Monroe’s right of publicity was an unenforceable expectancy at the time of her death, she could not dispose of it under the residuary clause of her will. Echoing the holding in the New York case, the California court ruled that even if it “were to conclude that Marilyn Monroe’s will unambiguously revealed an intent that Lee Strasberg take her statutory right of publicity—a construction the court does not believe is possible—Marilyn Monroe could not devise what was, at the time of her death, a mere expectancy in statutory rights that did not come into existence until decades later.” The Monroe Estate’s final argument in the California case was that “the ‘plain language’ of both the California and Indiana statutes reveals a legislative ‘intention that intestacy be a last resort’ and mandates that the posthumous rights of publicity created by the statutes pass to the residuary beneficiary of any predeceased personality’s estate.” The court disagreed and found that the language of both statutes, as well as the legislative history of the California statute, reveals a directly contrary intent. As described above, both statutes designate specified  heirs as the default takers where a personality fails to dispose of the right of publicity, either because he or she died intestate or, as in Monroe’s case, because the personality predeceased the enactment of the statute. The court emphasized that the California and Indiana legislatures could have chosen under these circumstances to retroactively vest the right ofpublicity directly in the residuary beneficiaries, but chose instead to vest the undisposed right in specified family members.

Given the California court’s reading of its state statute (and assuming that Monroe’s domicile could be resolved at this point in favor of California), could someone else turn out to be the owner of Monroe’s right of publicity? Since Monroe was not married at the time of her death and never had any children, her parents would be the only potential heirs under the California statutory scheme. The identity of Monroe’s biological father is still the subject of debate, but both of the leading candidates are deceased. Monroe’s mother, Gladys Baker, died in 1983, just one year before the enactment of the California statute. Thus, it is possible that Gladys’ heirs (perhaps Marilyn’s half-sister, Berniece Baker Miracle, who is still living) and the heirs of Monroe’s father, if paternity could be established, may now try to lay claim to Monroe’s right of publicity.

Is Monroe Legacy Fair Game?

Putting aside potential claims by Monroe’s relatives, do the recent court decisions mean that Monroe’s right of publicity has suddenly become fair game? The answer is probably no for a variety of reasons, much to the regret of merchandising companies and advertisers. First of all, it is almost certain that the recent decisions in New York and California will be appealed. Second, irrespective of the final outcome of the litigations, MMLLC and CMG could and most likely will turn to federal  trademark law to protect their interests. The name “Marilyn Monroe” is a registered trademark covering a number of categories of goods and services. This could provide a basis for infringement claims to be filed against unauthorized uses. Apart from the registered marks, there could also be causes of action for false representation or designation of origin in violation of §43(a) of the Lanham Act, which imposes liability for the unauthorized use of a celebrity’s persona in connection with goods or services, where the use is likely to cause confusion as to the celebrity’s affiliation or association with, or approval of, such goods or services.

The Monroe Estate may also get the exact relief it needs from the New York State Legislature. On May 31, 2007, a bill was introduced in the New York State Senate and Assembly that would retroactively grant a postmortem right of publicity directlyin the heirs of any personality who died on or after Jan. 1, 1938.The sponsors of the bill have rounded up a variety of New York celebrities to support the bill, including Yoko Ono, Liza Minelli and the estates of Jimi Hendrix and Mickey Mantle.
The bill has drawn strong opposition from New York media organizations because it purports to outlaw many uses protected by the First Amendment. Critics have also pointed out that the bill, if passed, would take effect immediately, and therefore would make illegal many activities that are currently legal. For example, collectors of Hollywood and sports memorabilia who lawfully purchased photographs or autographs of a deceased personality, even with the express consent of that personality, would risk costly litigation (and theoretically, under the language of the proposed bill, risk criminal prosecution) if they later sold the memorabilia. Perhaps the most troublesome aspect of the proposed bill is that it would grant a postmortem right of publicity in perpetuity. Given that one of the strongest rationales for protecting the right of publicity is to encourage creativity and foster the development of talent, there seems to be little justification for a postmortem right that lasts forever. The notion that someone would be motivated to create a persona and seek fame so that hundreds of years later his or her heirs would reap the economic benefits of that fame is hard to fathom.

Surely, Marilyn Monroe could not have contemplated in life how popular she would become in death, nor could she have envisioned the battles now waging in the courts and legislatures over the right to exploit her popularity. With the amount of money at stake in the celebrity-driven culture of the 21st century, it seems inevitable that these battles will increase and intensify in the years to come.