Last week the Ninth Circuit (the Federal Appeals court covering California) ruled that the heir to Marilyn Monroe’s estate could not stop a company from promoting and selling images of Monroe because she was a New York resident and New York does not recognize posthumous rights of publicity.
The case arose in 2005 when The Milton Green Archives sued Marilyn Monroe LLC and CMG Worldwide (who administer the sale and images of Marilyn for her heir) to declare that they had no right to issue cease and desist letters to the company over its sale of Monroe pictures. The initial lawsuit was decided in favor of Milton Greene because a court ruled that California did not have post-mortem publicity rights until 1984 and since Marilyn died in 1962, the 1984 law did not apply to her. In 2007, in direct response to the Green decision, California State Senator Sheila Kuehl (herself a child star from the TV Series Dobie Gillis) introduced Senate Bill 771 (“SB 771”), which, when enacted in early September 2007, amended California Civil Code § 3344.1.10 to make the 184 law retroactively apply to all personalities who died before January 1, 1985 (the effective date of California’s post-mortem right to publicity law).
With the new law firmly in their favor, the lawsuits were revived by the Monroe Estate. But Milton Green’s attorneys then argued that Monroe was not a California resident at the time of her death but rather a New York resident. The district court agreed, ruling that since Monroe’s estate fought for years to prove she was a New York resident in order to avoid paying California state income tax on residuals she earned there for her many movies, the estate could not now argue in this court that she was in fact a California resident. Milton Green relied on decades of material from NY Surrogate’s Court which showed that Monroe’s will was probated in NY; several affidavits had been submitted over the years declaring time and time again that Marilyn was a NY resident; that her estate declared that the home she owned outside LA was just for when she was filming there; and so on and so on. The Ninth Circuit agreed with the lower court that the Monroe Estate was “judicially estopped” from now arguing that California was her State of residence.
The case illustrates how important State of residence is at the time of death to determine if a celebrity’s estate has any right to enforce the deceased’ publicity rights. Currently 18 states have a post-mortem right to publicity with Indiana and Oklahoma having among the strongest. Bill Cosby is fighting as we speak to get a law passed in his home state of Massachusetts, which like NY has no protection for celebrities after their death. The estate of Bruce Lee is fighting in California against Urban Outfitters and others who claim that he was a resident of Hong Kong at the time of his death (where he was filming a movie) and therefore cannot assert California’s post-death rights to stop the sale of Bruce Lee T-shirts.
Federal trademark laws may still prevent companies from using dead celebrities to appear to endorse products but once a NY celebrity dies, anyone can sell products bearing their images (provided you own the rights to the image). Particularly with the growing use of 3-D holograms of dead celebrities, I think its time that a Federal post-mortem right to publicity law gets established so that celebrities don’t have to worry about where they are living if they want to pass this highly valuable asset to their heirs.