Friday, August 31, 2012
Court Upholds Ruling in Suit Over Marilyn Monroe Publicity
Actress Was New York Resident, Heirs Can’t Claim Rights Under California Law on Deceased Celebrities, Panel Says
By KENNETH OFGANG, Staff Writer
Legendary actress Marilyn Monroe was a New York resident at the time of her death, precluding her estate from claiming a posthumous right of publicity, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
“An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death,” Judge Kim M. Wardlaw wrote, noting that at least 153 articles were published on Aug. 5 of this year to mark the 50th anniversary of her 1962 death. She was 36 years old.
Noting that her executors took a strong position that she was domiciled in New York when she died at her Brentwood home, and attempted on that basis to avoid payment of California estate taxes, among other things, Wardlaw said it cannot now be held that Monroe was a resident of this state. Because New York does not recognize a right of publicity in the heirs or estates of deceased celebrities, the judge concluded, the entities that now own and license her intellectual property rights have no case against a company that sells Monroe photographs.
The court affirmed rulings by U.S. District Judge Margaret M. Morrow of the Central District of California that that CMG Worldwide and Marilyn Monroe LLC do not have a right of publicity
Marilyn Monroe LLC is the successor to the Monroe estate, as probate was wound up in New York in 2001. Monroe’s will left 75 percent of the residual estate to her acting coach and friend, Lee Strasberg, and the remainder to her psychiatrist, Dr. Marianne Krist, for distribution to “psychiatric institutions or groups” of Krist’s choosing.
Ana Strasberg inherited her husband’s interest following his death. Krist named what is now the Ana Freud Center in London as the beneficiary of the remaining interest.
Curtis Worldwide holds a license from Marilyn Monroe LLC to exploit Monroe’s image for commercial purposes.
In one lawsuit, Curtis and Marilyn Monroe LLC sued Milton H. Greene Archives, Inc. for using Monroe’s image and likeness for unauthorized commercial purposes. In the other action, Greene Archives sought a declaratory judgment that its commercial activities were permissible.
Milton H. Greene, who died in 1985, was a friend of Monroe who took thousands of photographs of her. Greene Archives, which holds the copyrights to those images, is headed by the photographer’s son, Joshua Greene.
In concluding that the district court correctly ruled for Greene, Wardlaw noted that the estate long argued that Monroe only bought the Brentwood house because she disliked living in hotels and needed a place to stay while filming. At the time of her death, she had been recently fired from the 20th Century Fox film Something’s Got to Give because of repeated absences and tardiness.
Apart from the estate tax issue, Wardlaw noted, Anna Strasberg had successfully defended against a claim by an alleged Monroe heir, claiming that the actress was a New York resident when she died and that New York law defeated the claim of the would-be heir.
The judge wrote:
“This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, ‘If you’re going to be two-faced, at least make one of them pretty.’ There is nothing pretty in Monroe LLC’s about-face on the issue of domicile. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from ‘playing fast and loose with the courts.’”
Attorneys on appeal were Douglas E. Mirell, Laura A. Wytsma and Benjamin R. King of Loeb & Loeb LLP in Los Angeles for Anna Strasberg and Marilyn Monroe LLC; Theodore J. Minch of Sovich Minch LLP, McCordsville, Ind. and William Weinberger of Parker, Milliken, Clark, O’Hara & Samuelian in Los Angeles for CMG Worldwide, Inc., and Surjit P. Soni, Leo E. Lundberg Jr. and M. Danton Richardson of The Soni Law Firm in Pasadena for Greene Archives.
The case is Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 08-564.
Copyright 2012, Metropolitan News Company