Friday, May 04, 2007

Marilyn Monroe’s Right of Publicity Did Not Survive Her Death

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

Marilyn Monroe, at the time of her death, did not own a right of publicity that could be bequeathed, the federal district court in New York City has ruled.

The court rejected a suit, based on the right of publicity, challenging (1) the sale at an Indianapolis Target store of a T-shirt bearing the star’s photograph and (2) the maintenance of a website offering for sale licenses for the commercial use of Monroe’s picture and likeness.

The suit was brought by Marilyn Monroe, LLC, a company that holds and manages the intellectual property assets of the Monroe’s residuary beneficiaries. Marilyn Monroe, LLC sued companies representing the children of the photographer Sam Shaw—the purported owners of copyrights to photographs of Marilyn taken by Shaw.

Recognition of Postmortem Publicity Rights

Postmortem publicity rights were not recognized in New York, California, or Indiana at the time of the star’s death in 1962, the court observed. To this day, New York law does not recognize any common law right of publicity and limits its statutory publicity rights to living persons, the court said.

California passed a postmortem right of publicity statute in 1984 (CCH Advertising Law Guide ¶30,555). Before that, a common law right of publicity existed in California, but it was not freely transferable or descendible, according to the court.

Indiana first recognized a descendible, postmortem right of publicity in 1994, when it passed the Right of Publicity Act (CCH Advertising Law Guide ¶31,455). Prior to that time, rights of publicity were inalienable in Indiana and could only be vindicated through a personal tort action for invasion of privacy, according to the court.

Thus, any publicity rights that Monroe enjoyed during her lifetime were extinguished at her death by operation of law, the court concluded.

The decision is Shaw Family Archives Ltd. v. GMC Worldwide, Inc., 05 Civ. 3939 (CM), May 2, 2007.

Tennessee Precedent

In another postmortem publicity rights case, a Tennessee appellate court in 2006 held (CCH Advertising Law Guide ¶61,986) that the publicity rights of legendary country music star Hank Williams (who died in 1953) could be enforced by his heirs.

In a dispute over the use and exploitation of recordings of Williams’ Mother’s Best Flour radio programs in 1951 and 1952, the court noted that Tennessee’s common law embodied an expansive view of property, including intangible personal property, and that the Tennessee legislature later provided statutory protection for the right of publicity (CCH Advertising Law Guide ¶34,255).

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