Owners of Marilyn Monroe photographs have won a decisive legal victory in the US Court of Appeals for the Ninth Circuit in San Francisco, which has affirmed that Marilyn Monroe heirs have inherited no rights of publicity to the actress’s likeness.
The decision means that Monroe’s heirs cannot control how images of the actress are used commercially, and cannot demand fees whenever those images are licensed for use on calendars, posters, memorabilia, or other products.
The ruling, issued last week in the case of Milton H. Greene Archives v. Marilyn Monroe LLC, turned on the question of where Monroe was domiciled at the time of her death in 1962: New York or California. California has a law that transfers rights of publicity posthumously to a decedent’s heirs; New York does not.
The appeals court affirmed a lower court decision that said Monroe was a New York resident because her heirs had insisted upon that for 40 years in order to avoid paying California taxes. The courts said the heirs cannot now claim Monroe was a California resident in order to take financial advantage of California’s posthumous right of publicity laws.
The case began in 2005. In 2007, a federal district court in California ruled that no right of publicity law existed in either New York or California at the time of Monroe’s death in 1962. Therefore, she couldn’t have transferred that right to her heirs through her will, regardless of what state she resided in at the time of her death. (The question of her residence wasn’t settled at the time.)
That 2007 decision freed the Milton H. Greene archives to license Monroe photographs without interference from Monroe’s heirs, who are represented by Monroe LLC.
Monroe LLC responded by prevailing upon the California state legislature to pass a posthumous right of publicity law. That law states explicitly that its intent was to abrogate (nullify) the district court’s decision.
With that posthumous right of publicity law in hand, Monroe’s heirs then went back to the district court for reconsideration of the 2007 decision. Upon review, the district court concluded that Marilyn Monroe was domiciled in New York at the time of her death, not California, so New York law applied in the right of publicity question.
Because New York still has no posthumous right of publicity law on the books, the court ruled that Monroe’s heirs could claim no rights of publicity. (The heirs had tried to get a posthumous right of publicity law passed in New York, as they had done in California, but the New York effort failed.)
With a lot of money at stake–sales of Monroe memorabilia reportedly generated $27 million in 2011, according to the court papers–Monroe’s heirs appealed the district court’s second ruling to the Ninth Circuit court of appeals.
In a forceful decision, the appeals court upheld the district court’s finding on Monroe’s residence at the time of her death.
“Monroe LLC’s new litigation position that Monroe died domiciled in California, asserted to obtain the benefit of California’s posthumous right of publicity statute, is inconsistent with the preceding forty years of representations on behalf of the estate that Monroe died domiciled in New York,” the appeals court wrote in its decision.
The court continued, “The estate succeeded in persuading numerous judicial and quasi-judicial bodies to accept that Monroe died a domiciliary of New York.
“Judicial and quasi-judicial officers repeatedly accepted and relied upon the estate’s representations about Monroe’s New York domicile.
“The district court concluded that permitting Monroe LLC to assert that Monroe died a domiciliary of California in this litigation would unfairly allow it to obtain a ‘second advantage.’ We agree.”
A district court in New York reached a similar decision in favor of the Shaw Family Archives, which also licenses Monroe images. An appeal of that decision has been pending the outcome of the Ninth Circuit decision.
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