‘Domicile’ and ‘estoppel’: not, perhaps, words one immediately associates with Marilyn Monroe, but the central issues in Milton Greene Archives Inc v Marilyn Monroe LLC (9th Cir, 30 August 2012). Marilyn Monroe LLC (MM LLC), a corporation established by the executrix of Monroe’s estate, asserted rights of publicity in photographs of the actress owned by Milton Greene Archives (MGA). The California district court found in favour of MGA, on the grounds that at the time Monroe made her will the law did not allow the testamentary disposition of publicity rights. The California legislature responded to that decision by passing a law retroactively extending rights of publicity to anyone who died before 1985. But did California law apply to Monroe’s will?
No, said the Second Circuit. Monroe’s estate had consistently maintained at the time of her death and afterwards that while she died in California, she was domiciled in New York. Monroe had bought a house in Los Angeles to use while filming what, had it been completed, would have been her last movie, but owned an apartment, employed staff and kept the bulk of her possessions in New York. It was important for the estate to say that New York law governed in order to avoid the payment of significant death duties in California. It also proved useful in barring the claims of a woman who alleged she was Monroe’s illegitimate daughter, but whose cause of action was not recognised under New York law. Having relied for so long on New York as the governing law of Monroe’s will and succession, MM LLC could not now assert that it was California law that governed after all. This was ‘a textbook case’ for the application of judicial estoppel, the principle that you can’t rely on a position inconsistent with one you have used as the basis for successful litigation in the past. In rejecting the estate’s submissions, the court cited a remark attributed to Monroe: ‘If you’re going to be two-faced, at least make one of them pretty.’ The estate could not therefore assert rights of publicity in Monroe’s image because New York law did not recognise that such rights could have been transmitted by the actress’s will. Don’t feel too sorry for MM LLC, though: it earned US$27 million in 2011 from intellectual property rights that had been validly transmitted under the actress’s will.