Even 50 years after her death, Marilyn Monroe continues to remain relevant. In a strongly worded Opinion (available here) last week, the Ninth Circuit Court of Appeals ruled that the Estate of Marilyn Monroe does not have the right to stop others from using Marilyn Monroe’s name and likeness. At issue in the case was whether Monroe’s Estate inherited a right of publicity in Marilyn Monroe’s name and likeness under California law.
Background: For the past 50 years—since Monroe’s death in August 1962—Monroe’s Estate (and its successor, Monroe, LLC) has been asserting that it inherited Monroe’s right of publicity, claiming to own Monroe’s images, voice, likeness and biographical information—rights that were worth $27 million in 2011.
New York or California? Rights of publicity vary from state to state: though most states recognize the right during a person’s lifetime, only a few states extend those protections after death. Though in California individuals have a posthumous publicity right, which can be bequeathed, in New York, the right of publicity is extinguished at death. Monroe died at a house she owned in Brentwood, California, though she also maintained her prior residence in New York City. Thus, the issue before the court was clear: if Monroe was a California resident at her death, the Monroe Estate would have inherited control of her name and likeness; if she was a New York resident, those rights would have expired when Monroe died.
Prior Proceedings. After her death, Monroe’s lawyer and executor, Aaron Frosch, asserted to both the New York Surrogate’s Court and the California tax authorities that Monroe died a domiciliary of New York. This allowed the Monroe Estate to avoid substantial California estate, inheritance and income taxes. And in 1994, the Monroe Estate faced a claim by Monroe’s alleged daughter, Nancy Miracle, who sought 50% of the Estate under a provision of California law, which was not available under New York law. The Estate defeated that claim by alleging that Monroe died a New York citizen.
The Current Lawsuit and the May 2007 Ruling. The lawsuit was brought in March 2005, when the Marily Monroe, LLC (the successor to the Estate) sued Milton Greene Archives, Inc., claiming ownership of Monroe’s right of publicity and alleging that the defendant unlawfully used Monroe’s image and likeness. In May 2007 the district court granted summary judgment, holding that Monroe LLC did not own Monroe’s right of publicity because at the time of Monroe’s death neither New York nor California recognized a descendible, posthumous right of publicity. As the District Court explained, the California law that made publicity rights inheritable was only passed in 1984, decades after Monroe’s 1962 death.
The California Legislature Overturns the Court. In direct response to the Distict Court’s 2007 ruling, the California legislature passed a bill later that year, which said the publicity rights inheritance law was retroactive and applied to all those who had died prior to 1984. The new law made the right of publicity freely transferable, descendible and able to pass through the residual clause in the will of the deceased personality The law was explicitly designed to abrogate the 2007 ruling.
The District Court’s Second Ruling. Monroe LLC later sought reconsideration of the district court’s ruling. Although the district court granted Monroe LLC’s motion for reconsideration, it found that Monroe LLC was “advanc[ing] a position inconsistent with that taken by the estate in the prior proceeding[s].” The District Court thus ruled that judicial estoppel would preclude Monroe, LLC from now taking an inconsistent position.
Ninth Circuit Ruling. The Ninth Circuit agreed with the district court that judicial estoppel prevented Monroe LLC from taking the position that Monroe died domiciled in California when it had prevailed in earlier suits on the premise that Monroe was a domiciliary of New York: “This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for 40 years, and then changed their position when it was to their great financial advantage,” the appeals court said.
Thus photographers, artists, and others will be able to exploit images without authorization from the estate. As the Ninth Circuit explained: “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 than 50 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.”