Last month, the estate of Marilyn Monroe lost a major court case in front of the Ninth Circuit Court of Appeals in California in regards to the late actresses’ post-mortem rights as to her name, image, and likeness. As you may be aware, Marilyn Monroe is still extremely popular in modern culture and her estate generates reportedly over $25 million dollars in income annually. Part of this revenue generated comes through licensing Mrs. Monroe’s image to vendors and subsequently it being plastered on t-shirts, posters, and anything else you can think of. Due to the commercial viability of Mrs. Monroe, many try to imitate and sell things with Mrs. Monroe’s name and likeness on it, and the estate seeks to stop these commercial ventures for the purported misappropriation of Mrs. Monroe’s name and likeness.
Publicity rights of the deceased are governed by state law, which vary greatly. Some states such as Tennessee and California have very lenient rights of publicity laws, granting the estate of the deceased extended (if not forever) periods of time to attempt to generate revenue with the name and likeness of the deceased. Other states, like New York, do not grant an estate post-mortem rights, meaning that if you are resident of New York when you die, any individual has a strong claim at being able to use your name and likeness for commercial purposes.
Which brings us to Mrs. Monroe. At the time of death, Mrs. Monroe had permanent residences in California and New York, and as such, her estate was allowed to choose Mrs. Monroe’s state citizenship status. This in turn dictates which state’s law applies to her estate. The estate choose to have the laws of New York apply to Mrs. Monroe’s estate. This may seem crazy given the prior two paragraphs, but back fifty years ago the estates of dead celebrities were not cash cows and California had a significantly higher estate tax than New York. The decision the estate made was likely the smarter decision at the time as there was no way to expect Mrs. Monroe would be generating so much income significant years after her death, however this established New York law as the controlling law of the estate and has led to the estate’s current issues.
A few years back, and very simply stated, the estate of Marilyn Monroe began claiming rights under California law (and California’s ‘forever’ rights of publicity) which spawned the lawsuit when the estate sought to shut down certain companies making products with Mrs. Monroe’s image. The estate sought to gain protection for Mrs. Monroe through the more beneficial laws of California, but the Ninth Circuit Court of Appeals shot down this argument and told the estate in schoolyard fashion “there are no take backs.” Once the law controlling an estate is established, through selecting the state citizenship and domicile of the deceased, the estate cannot change its selection at a later date.
As rights of publicity are state dependent, it is important to know what rights you may have concerning the estate of a deceased. Please be sure to contact an experienced intellectual property attorney to ensure the rights of the estate are best protected, as you can see above, there is the possibility that significant decisions must be made rather immediately in even filling out death certificates and forming a legal entity to govern an estate.
Bradley Legal Group, P.A. are Intellectual Property lawyers, Entertainment lawyers and Music lawyers servicing clients in Miami, Fort Lauderdale, Boca Raton, West Palm Beach, Orlando, and Nashville. We also affiliate with entertainment lawyers licensed in New York and Washington, D.C. © 2012 Bradley Legal Group, P.A