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Marilyn Monroe decision points to right of publicity's shortcomings

Dave Stafford
September 26, 2012
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The legal landscape for Marilyn Monroe’s heirs changed considerably when a federal court recently affirmed that the idol had no right of publicity that survived her.

The Aug. 30 decision of the 9th Circuit Court of Appeals in San Francisco involved a Fishers-based litigant, CMG Worldwide Inc., that represents various photo collections of the Hollywood legend, and formerly represented Marilyn Monroe LLC.

Fifty years after her death, Monroe’s royalties are estimated at $27 million a year according to Forbes, which lists her No. 3 in earnings among late celebrities, behind only Michael Jackson and Elvis Presley.
 

focus-ip-15col.jpg CMG Worldwide Inc. President Mark Roesler poses with cutouts of celebrities the company has been involved with representing posthumously. (Photo courtesy CMG Worldwide)

The 9th Circuit affirmed that the state of Monroe’s estate was inextricably connected to the state where the record shows she was domiciled.

“At issue is whether appellants inherited a right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her last will and testament,” 9th Circuit Judge Kim McLane Wardlaw wrote. “The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity.

“We conclude that because Monroe’s executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California’s posthumous right of publicity. We therefore affirm the district court’s order so holding.”

The right of publicity allows a person – or entity in the case of Marilyn Monroe LLC – the ability to maintain control over his or her name, image, etc. for commercial purposes. Legal experts on the right of publicity debate the scope of the decision, but they say it highlights the uncertainty involving the rights of heirs of famous people.

“We obviously would prefer that there

be a more uniform approach on the way right of publicity is handled,” said CMG President Mark Roesler. “Unfortunately, the way it’s evolved on a state-by-state basis … it makes our job a little more difficult to protect and exploit these rights for the clients we represent.”

CMG no longer represents Marilyn Monroe LLC or subsequent owners of her posthumous rights, but the company does represent photo collections that Roesler said are protected by copyright. He said Monroe licensing probably accounts for less than 5 percent of the company’s business. CMG had sued photo studios in California and Oregon, claiming they violated copyrights by using Monroe’s image.

Valparaiso University Law School associate professor Mike Murray has written extensively on right of publicity and said the Supreme Court has been loath to address an area of law that only came into existence around the time that Monroe’s star was at its zenith.

“In a lot of ways, we tackle issues in this area of law as if it were a brand new developing area,” Murray said.

It’s unclear whether those who represent Monroe will appeal the decision to the Supreme Court, but Murray and others said there are tantalizing but challenging arguments to be made. Authentic Brands in New York now is the principle representative of Monroe’s estate. General counsel for the company could not be reached for comment.

“It seems the commentators I’ve been reading are all assuming she belongs to the public domain now,” Murray said. “That points me to, ‘Is this true? Coast to coast? Even in places that fought tooth-and-nail to protect posthumous rights?’”

Murray said courts have allocated rights of publicity according to probate laws where the law of the domicile at death determines the inheritability of all rights of publicity. He said the issue may be better framed as a choice-of-law question: Why shouldn’t rights of publicity in various states pass according to the public interest analysis of those states when choosing both the law of how those rights are acquired by the celebrity’s estate and the extent of the publicity rights themselves? 

The courts in Monroe’s case have held that at the time of probate no posthumous rights existed in California, Indiana or New York, so no rights could be acquired by the estate and her heirs.  Since then, California and Indiana have gone to great lengths to award retroactive posthumous rights to celebrity’s estates and heirs which raise a potential choice of law issue. 

“This might be one where we’re getting it wrong because we’re saying, ‘It has to be the law of her domicile,’” Murray said. “It would seem her Hollywood career alone would be a good opportunity for California to say, ‘Hold on a minute,’” and vindicate its right of publicity statute, he said.

But the court’s ruling could preclude such an argument, said CMG general counsel Jeong-Ho Lee.

“The court used the doctrine of judicial estoppel, and the court has strictly applied that, and I don’t see any fault in the court’s reasoning in that regard,” Lee said. He explained that the District Court previously rejected CMG’s argument that Indiana’s right of publicity law should be extended to Monroe since the company held her representation.

Jonathan Faber teaches right of publicity courses at Indiana University Robert H. McKinney School of Law and is an attorney at McNeely Stephenson Thopy & Harrold in Shelbyville.

He also founded Luminary Group LLC that represents brands and personalities and runs the website rightofpublicity.com.

Faber believes that even if Monroe was domiciled in New York, a right of publicity argument exists. “In 1962,” the year Monroe died, “New York law based on other cases interpreting New York statutes indicated there would be a postmortem right of publicity,” he said. Faber believes courts have erroneously applied laws on the books that only date to the 1980s to find no right of publicity for Monroe.

“My feeling is the new owners (of Marilyn Monroe’s posthumous rights) might want to appeal rather than letting this be where things lie,” Faber said.

Meanwhile, the law is evolving in Indiana and elsewhere. New York and Wisconsin are the only states that do not recognize a posthumous right to privacy.

Faber helped draft and testified in favor of House Enrolled Act 1258, a revision to Indiana’s law that took effect in July, confirming that the state’s right of publicity applies to those who died before the 1994 passage of the statute, I.C. 32-36-1-1.

“It was a critical update to the law,” he said. A real-life case in point: The use of John Dillinger as a video game character. “There was some ambiguity as to whether that would be how the law is interpreted,” Faber said.

But Lee and others said the Monroe case points to challenges for the principle of right of publicity, which never had federal recognition. And getting that could come at a cost.

“If we did have a federal right to publicity, we wouldn’t want to backtrack on what we think is good protection at the present time,” Roesler said.

“Right of publicity is probably going through its toughest time right now,” Lee said. “It’s shrunk from the previous era.”•
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  1. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. 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  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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