While this blog normally focuses on trademarks, a recent court ruling in California highlights an interesting case in the similar field of the right of publicity. In a nutshell, the right of publicity is the right of a well-known individual to control the commercial use of his or her name, image, and likeness. Unlike trademarks, for which there is a comprehensive federal right in addition to any additional rights that may be provided by the states, this right exists solely in the domain of state laws.

On August 30, the Court of Appeals for the Ninth Circuit ruled that the estate of Marilyn Monroe is not owed royalties for sales of images and photographs of the actress by The Milton Greene Archives. The ruling highlights the differences in the right provided by the different states. At the time of her death in 1962, Monroe owned a home in Los Angeles and an apartment in New York. In order to avoid paying California’s severe inheritance taxes, her estate then claimed New York as her legal state of residence, a decision which the Ninth Circuit found to be legitimate.

In recent years, however, Monroe’s estate has changed its tune, wishing to assert a California law granting the posthumous right of publicity to the famous. The law treats the publicity rights of a famous person essentially as a piece of property, much like a trademark, which survives one’s death and can be transferred to one’s heirs either specifically or, as here, through the residuary clause in her will. New York’s version of this law stalled in the state legislature and has not been passed. Unfortunately for Monroe’s estate, claiming New York residency half a century ago prohibited them from claiming California residency now.

While the issue in this case is relatively unique to celebrities, it does provide a useful lesson in related fields. Monroe’s estate was foiled by the uneven laws of differing states because no comprehensive federal law exists. Such a federal law does, however, exist in trademark law. Those who wish to protect their brands via trademarks as Monroe’s estate wished to protect her likeness via the right of publicity should strongly consider the merits of federal trademark registration so that, at the very least, they gain certainty in their marks being equal in force no matter which state they happen to be in.