Indy IP firm loses Monroe publicity rights case

Back to TopCommentsE-mailPrintBookmark and Share
A federal judge's decision in California this week represents a significant legal loss for an Indianapolis intellectual property firm relating to the publicity rights of Marilyn Monroe.

U.S. District Judge Margaret M. Morrow of the Central District of California in Los Angeles ruled Monday that Marilyn Monroe LLC and Indianapolis-based CMG Worldwide don't own rights of publicity, and that a studio and licensing company have the right to market and license images of the famous actress.

The judge's action reversed a ruling from last year, culminating a long-running handful of suits that had been consolidated from various jurisdictions, including the Southern District of Indiana.

The instant case was transferred and consolidated in the California District Court in 2005 to decide whether the company owned exclusive right to control the use of Monroe's image and likeness for commercial uses. The litigation involved photographers Milton H. Greene and Tom Kelley, whose photos helped catapult Monroe to stardom and include a nude shot of her on a red velvet cloth that went on to launch Playboy magazine.

When she died in 1962, neither of the states where she resided - New York or California - recognized a descendible postmortem publicity right. The court ruled last year that her rights didn't extend to heirs or beneficiaries, but a law change in October gave the right of publicity to those who'd died before 1985 if they were domiciled there.

That law change warranted a second look from Judge Morrow, who decided that Monroe wasn't domiciled in California. She wrote in a 62-page decision that CMG and MMLLC had been inconsistent in their arguments that Monroe was domiciled in California when she died, which went against claims made decades ago for what she described as tax-evasion purposes.

The judge applied judicial estoppel to prevent parties from changing positions they'd previously argued and accused the plaintiffs of "attempting to play fast and loose with the courts."

An Indianapolis attorney formerly representing CMG and who's handled Monroe litigation in the past said this ruling is disappointing from both an iconic and legal standpoint.

"Marilyn Monroe is one of the heavyweight celebrities in the licensing business and she has generated significant licensing revenues, but the court has essentially unleashed the right of publicity for Marilyn to the public domain," said Jonathan Polak, who leads the intellectual property group at law firm Sommer Barnard. "This is a sad day for those of us practicing in this area."

The ruling seems unfair that lawyers making statements in the 1960s while dealing with tax issues following Monroe's death could unknowingly undo the unrelated intellectual property rights of the celebrity decades later, Polak said.

He hopes the decision will be appealed.

This is the second loss for CMG in a year; a New York federal judge made a similar ruling in May 2007 that Monroe didn't have any postmortem right of publicity and that a photographer's world-renowned images of the actress didn't violate any rights.

Figures from 2007 show that Monroe has raked in more than $30 million in licensing fees in the last dozen years for everything from TV commercials to T-shirts - with roughly 25 percent of that windfall landing in CMG coffers.

CMG chief executive officer Mark Roesler was out of town and couldn't be reached Wednesday for comment.

But Polak remained optimistic for the IP company.

"All is not lost for the Monroe estate," he said. "It still owns significant and valuable trademark rights that have not yet been adjudicated in pending lawsuits, and those rights are not subject to issues of domicile or judicial estoppel."

In a news release, a licensing group for the Archives of Milton H. Greene and Tom Kelley Studios noted it is creating a separate licensing group called Marilyn Monroe Licensing Group, a division of Legends Licensing LLC and part of Pacific Licensing, that will serve as a "one-stop shop" for Monroe images and will also represent other content providers for commercially usable images of Monroe.

Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. Especially I would like to see all the republican voting patriotic good ole boys to stop and understand that the wars they have been volunteering for all along (especially the past decade at least) have not been for God & Jesus etc no far from it unless you think George Washington's face on the US dollar is god (and we know many do). When I saw the movie about Chris Kyle, I thought wow how many Hoosiers are just like this guy, out there taking orders to do the nasty on the designated bad guys, sometimes bleeding and dying, sometimes just serving and coming home to defend a system that really just views them as reliable cannon fodder. Maybe if the Christians of the red states would stop volunteering for the imperial legions and begin collecting welfare instead of working their butts off, there would be a change in attitude from the haughty professorial overlords that tell us when democracy is allowed and when it isn't. To come home from guarding the borders of the sandbox just to hear if they want the government to protect this country's borders then they are racists and bigots. Well maybe the professorial overlords should gird their own loins for war and fight their own battles in the sandbox. We can see what kind of system this really is from lawsuits like this and we can understand who it really serves. NOT US.... I mean what are all you Hoosiers waving the flag for, the right of the president to start wars of aggression to benefit the Saudis, the right of gay marriage, the right for illegal immigrants to invade our country, and the right of the ACLU to sue over displays of Baby Jesus? The right of the 1 percenters to get richer, the right of zombie banks to use taxpayer money to stay out of bankruptcy? The right of Congress to start a pissing match that could end in WWIII in Ukraine? None of that crud benefits us. We should be like the Amish. You don't have to go far from this farcical lawsuit to find the wise ones, they're in the buggies in the streets not far away....

  2. Moreover, we all know that the well heeled ACLU has a litigation strategy of outspending their adversaries. And, with the help of the legal system well trained in secularism, on top of the genuinely and admittedly secular 1st amendment, they have the strategic high ground. Maybe Christians should begin like the Amish to withdraw their services from the state and the public and become themselves a "people who shall dwell alone" and foster their own kind and let the other individuals and money interests fight it out endlessly in court. I mean, if "the people" don't see how little the state serves their interests, putting Mammon first at nearly every turn, then maybe it is time they wake up and smell the coffee. Maybe all the displays of religiosity by American poohbahs on down the decades have been a mask of piety that concealed their own materialistic inclinations. I know a lot of patriotic Christians don't like that notion but I entertain it more and more all the time.

  3. If I were a judge (and I am not just a humble citizen) I would be inclined to make a finding that there was no real controversy and dismiss them. Do we allow a lawsuit every time someone's feelings are hurt now? It's preposterous. The 1st amendment has become a sword in the hands of those who actually want to suppress religious liberty according to their own backers' conception of how it will serve their own private interests. The state has a duty of impartiality to all citizens to spend its judicial resources wisely and flush these idiotic suits over Nativity Scenes down the toilet where they belong... however as Christians we should welcome them as they are the very sort of persecution that separates the sheep from the wolves.

  4. What about the single mothers trying to protect their children from mentally abusive grandparents who hide who they truly are behind mounds and years of medication and have mentally abused their own children to the point of one being in jail and the other was on drugs. What about trying to keep those children from being subjected to the same abuse they were as a child? I can understand in the instance about the parent losing their right and the grandparent having raised the child previously! But not all circumstances grant this being OKAY! some of us parents are trying to protect our children and yes it is our God given right to make those decisions for our children as adults!! This is not just black and white and I will fight every ounce of this to get denied

  5. Mr Smith the theory of Christian persecution in Indiana has been run by the Indiana Supreme Court and soundly rejected there is no such thing according to those who rule over us. it is a thought crime to think otherwise.