Court Rejects Right of Publicity Claim of Marilyn Monroe Heirs

May 09, 2007
By David Walker (PDN)

A federal court in New York has rejected the claim of Marilyn Monroe’s estate that it owns rights of publicity in the actress’s likenesses, including photographs. In addition to undercutting a lawsuit against a photo archive for unauthorized commercial use of a Monroe photograph, the decision opens the door for anyone to use Monroe images commercially without permission from the estate.

The estate, MMLLC, and its licensing agency, CMG Worldwide, sued the Shaw Family Archives and its agent, Bradford Licensing Associates in 2005. The suit alleged commercial use of Marilyn Monroe’s likeness without permission, in violation of Indiana’s right of publicity law. Among the alleged violations was a t-shirt, purchased at an Indiana Target store, bearing an image of Monroe credited to the Shaw Family Archives.

For years, MMLLC has collected fees for commercial use of Monroe’s likeness, on the grounds that it owns Monroe’s rights of publicity. Those commercial licensing fees are separate from (and in addition to) usage fees that licensees pay to the copyright holders of the images.

The Shaw Family Archives, owned and operated by the three children of the late Monroe photographer Sam Shaw, responded to MMLLC’s lawsuit by challenging the validity of the estate’s right-of-publicity claims.

MMLLC argued that it had controlling interest in Monroe’s rights of publicity because of a transfer clause in the actress’s will. But SAF argued that Monroe couldn’t pass those rights along in her will, because they were non-existent at the time of her death.
The federal court in New York agreed.

So-called postmortem (or after death) rights of publicity exist by law in some states but not others. The Indiana law didn’t apply, the court ruled, because Monroe never lived there, and because the Indiana law was enacted in 1994—long after Monroe’s death in 1962.

It is a matter of debate whether Monroe was a resident of New York or California at the time of her death in 1962. But California didn’t enact a postmortem right of publicity law until 1984, and New York still doesn’t have one. Since neither of those states had rights of publicity laws on the books at the time of Monroe’s death, the court ruled, she never had any publicity rights to pass on to heirs or beneficiaries.

“Any publicity laws she enjoyed during her lifetime were extinguished at her death by operation of law,” the judge wrote in her decision. MMLLC argued that the Indiana law conferred publicity rights after Monroe’s death, but the judge dismissed that argument as “untenable.”

“We’re beside ourselves…this is a big boost, because a lot of people wouldn’t do [business] with us before,” says Meta Shaw Stevens, who owns Shaw Family Archives with her sister Edith Shaw Marcus and her brother Larry Shaw. She explains that “in the past, [our clients] had to pay a tremendous amount of money to CMG, which left very little money for photos. Now companies can come to us, and they don’t have to pay CMG.”

Through spokesperson Michael Nagel, CMG declined to comment about the ruling. It is unknown whether the company will appeal
According to Christopher Serbagi, who represented SFA along with Sam Shaw’s grandson David Marcus, CMG lobbied for the enactment of Indiana’s right of publicity law, hoping to bestow rights of publicity on celebrities and their heirs no matter where they lived (CMG represents various celebrities and celebrity estates).

“[MMLLC and CMG] took a big risk and lost” in deciding to test the Indiana law and their right of publicity claims, says Serbagi.
Users of Monroe images usually capitulate to CMG’s demands, rather than take on the cost and risk of a legal battle, Serbagi says.
But the Shaw family decided to fight, Meta Stevens says, because “we didn’t have very much to lose. If we had lost, we would have been where we were.” Most of the legal work, she says, was done by her nephew, David Marcus.

“It’s the David and Goliath story. My nephew worked feverishly on behalf of his grandfather and other photographers in a similar situation. He’s a one man operation up against a mega law firm, and something good happened.”

Serbagi says SFA is now pursuing its counter-claims against CMG. “We intend to vigorously pursue them for interfering with our business relationships, and for causing us financial damage,” he says.