Marilyn, money fueling right of publicity battle

LOS ANGELES (Hollywood Reporter, ESQ.) - Who gets to profit from the iconic image of Marilyn Monroe and thousands of other long-dead celebrities?

Recent efforts by two federal courts and the California legislature to answer this complex question are doing little to resolve a heated legal debate with tens of millions in royalties at stake.

The ability to control a deceased person’s name, likeness, voice and image dates to 1985, when California declared that a person’s “right of publicity” is descendible property that now endures 70 years beyond the individual’s death. The California law -- among the broadest of the 28 or so states that offer some kind of protection -- grants a celebrity’s heirs the right to control the commercial use of his or her likeness as long as the efforts don’t violate the First Amendment.

As anyone who has seen ads starring the likes of John Wayne and Fred Astaire knows, dead entertainers have become huge earners. Just last year, Monroe’s right of publicity reportedly earned $8 million for its owner, Anna Strasberg, the widow of acting coach Lee Strasberg, whom Monroe asked in her will to dispose of the leftovers (or “residuary”) she didn’t give to anyone else.

Whether Anna Strasberg and her licensing agent should be making millions from Monroe’s fame was the subject of federal court decisions this year in California and New York. Both ruled against Strasberg, finding that individuals who died before 1985 could not grant publicity rights to anyone but their spouse or children because the right to freely transfer such rights by will didn’t exist when they died. For Monroe, who passed away in 1962 without a husband or kids, the courts held the right of publicity fell into the public domain, allowing anyone to affix the legendary bombshell’s face to products like massage oils or underwear.

That’s when the California legislature stepped in. State senator Sheila Kuehl, who starred in the 1959-63 CBS series “The Many Loves of Dobie Gillis,” fast-tracked a bill backed by SAG and passed last Friday that retroactively grants publicity rights regardless of whether the celebrity died before or after 1985. Publicity rights go to individuals specified in a will, but if the rights aren’t specifically mentioned, they go to whomever the deceased granted the residuary, unless the deceased’s heirs are already exploiting the rights successfully.

Confusing? Attorney Serj Soni, who represents the photo archive that won the California case against Strasberg, says the law is poorly written and would cause thousands of heirs of celebrities who died pre-1985 to lose valuable rights if their famous relative didn’t specifically bequeath them the right of publicity and granted someone else the leftovers. He predicts “pandemonium” and a slew of litigation if the bill becomes law.

“It’s family members who would likely have the best interests of the deceased in mind,” Soni says. “Giving a broad grant of rights to the residuary beneficiary goes against 200 years of law and is designed to benefit one person: Anna Strasberg.”

Kuehl, a Democrat who says she authored the bill after the judge in the California case noted a lack of clarity in state law, hopes the revised law helps resolve disputes like the Monroe case and boosts the control that public figures have over how their fame is exploited after they’re gone.

“Those to whom the celebrity entrusts his or her image are the best to determine how it is used,” she says.

California’s celebrity governor, Arnold Schwarzenegger, has not indicated whether he will sign the bill.

If the bill becomes law, Soni says he’ll sue to prevent its enforcement, meaning the issue likely is far from dead.

Reuters/Hollywood Reporter