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Indy IP firm loses Monroe publicity rights case

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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.
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  1. You can put your photos anywhere you like... When someone steals it they know it doesn't belong to them. And, a man getting a divorce is automatically not a nice guy...? That's ridiculous. Since when is need of money a conflict of interest? That would mean that no one should have a job unless they are already financially solvent without a job... A photographer is also under no obligation to use a watermark (again, people know when a photo doesn't belong to them) or provide contact information. Hey, he didn't make it easy for me to pay him so I'll just take it! Well heck, might as well walk out of the grocery store with a cart full of food because the lines are too long and you don't find that convenient. "Only in Indiana." Oh, now you're passing judgement on an entire state... What state do you live in? I need to characterize everyone in your state as ignorant and opinionated. And the final bit of ignorance; assuming a photo anyone would want is lucky and then how much does your camera have to cost to make it a good photo, in your obviously relevant opinion?

  2. Seventh Circuit Court Judge Diane Wood has stated in “The Rule of Law in Times of Stress” (2003), “that neither laws nor the procedures used to create or implement them should be secret; and . . . the laws must not be arbitrary.” According to the American Bar Association, Wood’s quote drives home this point: The rule of law also requires that people can expect predictable results from the legal system; this is what Judge Wood implies when she says that “the laws must not be arbitrary.” Predictable results mean that people who act in the same way can expect the law to treat them in the same way. If similar actions do not produce similar legal outcomes, people cannot use the law to guide their actions, and a “rule of law” does not exist.

  3. Linda, I sure hope you are not seeking a law license, for such eighteenth century sentiments could result in your denial in some jurisdictions minting attorneys for our tolerant and inclusive profession.

  4. Mazel Tov to the newlyweds. And to those bakers, photographers, printers, clerks, judges and others who will lose careers and social standing for not saluting the New World (Dis)Order, we can all direct our Two Minutes of Hate as Big Brother asks of us. Progress! Onward!

  5. My daughter was taken from my home at the end of June/2014. I said I would sign the safety plan but my husband would not. My husband said he would leave the house so my daughter could stay with me but the case worker said no her mind is made up she is taking my daughter. My daughter went to a friends and then the friend filed a restraining order which she was told by dcs if she did not then they would take my daughter away from her. The restraining order was not in effect until we were to go to court. Eventually it was dropped but for 2 months DCS refused to allow me to have any contact and was using the restraining order as the reason but it was not in effect. This was Dcs violating my rights. Please help me I don't have the money for an attorney. Can anyone take this case Pro Bono?

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