9th Circuit: Marilyn Monroe Not Protected By California's Post-Mortem Publicity Statute

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After decades of claiming that Marilyn Monroe died domiciled in New York in order to avoid paying estate taxes to California, the actor's estate was judicially estopped from claiming that she was domiciled in California in order to take advantage of that state's recently enacted posthumous right of publicity statute, the U.S. Court of Appeals for the Ninth Circuit held Aug. 30 (Milton H. Greene Archives Inc. v. Marilyn Monroe LLC, 9th Cir., No. 08-56471, 8/30/12).

The court noted that Monroe's estate had argued between her death in 1962 and the filing of the instant lawsuit in 2005 that although she had died while in California, she was domiciled in New York. Accordingly, the estate cannot now claim that Monroe was domiciled in California in order to take advantage of a 2007 statute that created an inheritable post-mortem right of publicity for any California resident who died before Jan. 1, 1985, the court said. The court thus affirmed the granting of summary judgment in favor of two photography agencies that were using Monroe's image and likeness for commercial purposes.

Monroe Estate Avoids Paying California Taxes.

Marilyn Monroe, born Norma Jeane Mortenson in 1926, was an actor and public persona. At the time of her death in 1962, she had residences in California and New York.

Monroe's will granted to two people 50 percent of her estate. The remaining balance was granted to acting teacher Israel “Lee” Strasberg in a residuary clause. Strasberg died in 1982, and in 2001, Monroe's estate, including intellectual property assets, was transferred to Marilyn Monroe LLC. None of the clauses in Monroe's will made explicit reference to intellectual property rights or the right of publicity.

At the time of her death, Monroe was staying at a home she had recently purchased in Brentwood, Calif. However, during 40 years of subsequent probate proceedings Monroe's estate consistently represented that she had died a domiciliary of New York, and thus avoided paying estate taxes in California.

Indeed, affidavits from multiple witnesses, including Monroe's attorney, her housekeeper, and her personal masseuse were introduced during the probate proceedings to demonstrate her intent to move back to an apartment she owned in New York after she concluded her business in California--that business being the filming of the movie Something's Got to Give, from which she was fired just two months before her death.

In 2005, Marilyn Monroe LLC and its licensee, CMG Worldwide, filed a lawsuit in the U.S. District Court for the Southern District of Indiana against Milton Greene Archives Inc. and Tom Kelley Studios Inc.

The lawsuit alleged that the defendants, both of whom were well-known photographers that had taken photographs of Monroe during her lifetime, were using Monroe's image and likeness for commercial purposes in violation of Indiana's right of publicity statute.

Milton Greene then filed a claim in the U.S. District Court for the Central District of California seeking a declaration that Marilyn Monroe LLC did not own Monroe's right of publicity. The Indiana case was transferred to California and the cases were consolidated.

Earlier Decision Prompts California to Amend Statute.

The district court in May 2007 granted Milton Greene summary judgment, finding that at the time of Monroe's death none of three states (California, New York, and Indiana) had statues that allowed a decedent's right of publicity to pass to her heirs. Milton H. Greene Archives Inc. v. CMG Worldwide Inc., No. 2:05-cv-02200, (C.D. Cal. 5/17/07).

The court said that although California had in 1984 enacted a statute creating a transferable right of publicity, that statute was inapplicable since Monroe had died more than two decades before enactment.

Around this same time, the U.S. District Court for the Southern District of New York dismissed a similar claim in which Monroe's estate challenged another photographer's use of her image and likeness. Shaw Family Archives Ltd. v. CMG Worldwide Inc., No. 05 Civ. 3939 (S.D.N.Y. 5/2/07).

Analyzing the case under both New York and California law, the court determined that neither California or New York state law recognized a heritable post-mortem right of publicity that would apply to Monroe.

Following the initial decision in this case and the decision in Shaw, the California legislature introduced a bill that would make its post-mortem right of publicity statute retroactive, and the New York legislature introduced a bill that would create a posthumous right of publicity.

The New York bill stalled, but the California bill, S.B. 771, was enacted. It amended California's right of publicity statute, Cal. Civ. Code § 3344.1, to specifically state that personalities who died prior to Jan. 1, 1985 died with an inheritable right of publicity. That right passed through the residual clause of a personality's will if it was not subject to an express testamentary transfer, S.B. 771 provided.

Based on S.B. 771, Marilyn Monroe LLC sought a reconsideration of the district court's grant of summary judgment. The district court agreed that the statute applied retroactively, and granted the motion to reconsider.

The district court then determined that Marilyn Monroe LLC was judicially estopped from arguing that Monroe had been domiciled in California at the time of her death. Milton H. Greene Archives Inc. v. CMG Worldwide Inc., 568 F. Supp. 2d 1152 (C.D. Cal. 2008).

Accordingly, the court said New York law applied, and thus granted Milton Greene summary judgment after pointing out that there is no recognized posthumous right of publicity in New York. Marilyn Monroe LLC appealed.

Estate Can't Argue California Domicile Issue.

The sole issue on appeal was whether Monroe was domiciled in New York or in California at the time of her death.

“This is a textbook case for applying judicial estoppel,” Judge Kim McLane Wardlaw said.

Indeed, although “[t]he Supreme Court has provided little guidance on the contours of judicial estoppel,” the court said that in certain cases, such as this one, the doctrine is essential. In a scathing rebuke of Marilyn Monroe LLC's argument, the court said:

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.  


New York law therefore applied, and that state's failure to recognize a posthumous right of publicity was fatal to Marilyn Monroe LLC's claims, the court said. The court thus affirmed the district court's grant of summary judgment. In conclusion, the court said:

We observe that the lengthy dispute over the exploitation of Marilyn Monroe's persona has ended in exactly the way that Monroe herself predicted more that fifty years ago: “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.”  


Court Declines to Consider California, Indiana Laws.

Last year, the U.S. District Court for the Western District of Washington ruled that Washington's right of publicity--which like California and Indiana's statute provides for posthumous rights--was unconstitutional to the extent that it sought to protect that right regardless of the domicile of the person whose right of publicity is at issue. Experience Hendrix LLC v. HendrixLicensing.com Ltd., 98 USPQ2d 1046 (W.D. Wash. 2011).

In 2008, the Washington State Legislature amended the Washington Personality Rights Act, Wash. Rev. Code §63.60.010, to specify that an individual's right of publicity “does not expire upon the death of the individual or personality, regardless of whether the law of the domicile, residence, or citizenship of the individual or personality at the time of death otherwise recognizes a similar or identical property right.”

The Washington court, after noting that only Indiana's statute contains a similar choice of law provision, deemed that the provision ran afoul of the due process clause and the full faith and credit clause. In fact, it held unconstitutional six separate provisions of Washington's right or publicity statute.

The Ninth Circuit here declined to issue any rulings on whether the statutes were constitutional.

“Because we hold that [Marilyn Monroe LLC] is judicially estopped from asserting that Monroe died a domiciliary of California, we need not, and do not, address the various other rulings sought by the parties on the validity, meaning, scope and constitutionality of California's and Indiana's right of publicity laws,” the court said in a footnote.

Jonathan Reichman of Kenyon & Kenyon in New York is a proponent of a federal right of publicity statute that he says would alleviate many of these choice of law headaches. This decision is “a perfect example of why this area of the law cries out for uniform federal protection,” Reichman told BNA.

The opinion was joined by Judges Alfred T. Goodwin and William K. Sessions III of the U.S. District Court for Vermont, sitting by designation.

Monroe's estate was represented by Douglas E. Mirell of, Loeb & Loeb, Los Angeles. CMG was represented by Theodore J. Minch of Parker, Milliken, Clark, O'Hara & Samuelian, Los Angeles. Milton Greene and Tom Kelley were represented by Surjit P. Soni of Pasadena, Calif.

By Tamlin H. Bason  

Opinion at http://pub.bna.com/ptcj/0856471Aug3012.pdf

Reichman is a member of this journal's board of advisors.

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