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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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