ILNews

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.
ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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

facebook - twitter on Facebook & Twitter

Indiana State Bar Association

Indianapolis Bar Association

Evansville Bar Association

Allen County Bar Association

Indiana Lawyer on Facebook

facebook
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. I wonder if the USSR had electronic voting machines that changed the ballot after it was cast? Oh well, at least we have a free media serving as vicious watchdog and exposing all of the rot in the system! (Insert rimshot)

  2. Jose, you are assuming those in power do not wish to be totalitarian. My experience has convinced me otherwise. Constitutionalists are nearly as rare as hens teeth among the powerbrokers "managing" us for The Glorious State. Oh, and your point is dead on, el correcta mundo. Keep the Founders’ (1791 & 1851) vision alive, my friend, even if most all others, and especially the ruling junta, chase only power and money (i.e. mammon)

  3. Hypocrisy in high places, absolute immunity handed out like Halloween treats (it is the stuff of which tyranny is made) and the belief that government agents are above the constitutions and cannot be held responsible for mere citizen is killing, perhaps has killed, The Republic. And yet those same power drunk statists just reel on down the hallway toward bureaucratic fascism.

  4. Well, I agree with you that the people need to wake up and see what our judges and politicians have done to our rights and freedoms. This DNA loophole in the statute of limitations is clearly unconstitutional. Why should dna evidence be treated different than video tape evidence for example. So if you commit a crime and they catch you on tape or if you confess or leave prints behind: they only have five years to bring their case. However, if dna identifies someone they can still bring a case even fifty-years later. where is the common sense and reason. Members of congress are corrupt fools. They should all be kicked out of office and replaced by people who respect the constitution.

  5. If the AG could pick and choose which state statutes he defended from Constitutional challenge, wouldn't that make him more powerful than the Guv and General Assembly? In other words, the AG should have no choice in defending laws. He should defend all of them. If its a bad law, blame the General Assembly who presumably passed it with a majority (not the government lawyer). Also, why has there been no write up on the actual legislators who passed the law defining marriage? For all the fuss Democrats have made, it would be interesting to know if some Democrats voted in favor of it (or if some Republican's voted against it). Have a nice day.

ADVERTISEMENT