May 4, 2007 / 12:35 PM / 12 years ago

Judge: Monroe right of publicity ended at death

LOS ANGELES (Hollywood Reporter, ESQ.) - A New York federal judge has ruled that Marilyn Monroe’s right of publicity died when she did in 1962, paving the way for family members of the late photographer Sam Shaw to continue selling and licensing images of the icon, including the photo of her standing above a subway gate.

A press photographer takes pictures at an exhibition of Marilyn Monroe property at Christie's auction house in London in this undated file photo. A New York federal judge has ruled that Monroe's right of publicity died when she did in 1962, paving the way for family members of the late photographer Sam Shaw to continue selling and licensing images of the icon, including the photo of her standing above a subway gate. REUTERS/Paul Hackett

Monroe’s estate sued Shaw Family Archives and Bradford Licensing Inc. in 2005 in Indiana alleging violations of the superstar’s right of publicity by using her name, image and likeness for commercial purposes without consent. The suit was brought under Indiana’s broad 1994 Right of Publicity Act, which recognizes a descendible postmortem right of publicity.

Shaw’s family and several others then filed a declaratory relief action over the dispute in New York federal court.

The dispute arises out of the sale of T-shirts by Target featuring an image of Monroe that was taken by Shaw. The archive also owns a Web site that allows customers to license Monroe’s image and likeness for various products.

Monroe’s estate claimed its right of publicity was devised through the residuary clause in her will that included all property “to which (she) shall be in any way entitled.”

The estate’s Indiana case was eventually transferred to New York and consolidated with the Shaw case.

In her ruling Wednesday, U.S. District Court Judge Colleen McMahon found that at the time of her death in 1962, Monroe did not have any postmortem rights of publicity under the law of any relevant state, including California, where she died, and New York, which was purportedly her legal residence, though that is under dispute.

California began recognizing descendible publicity rights in 1984; New York limits its statutory publicity rights to living persons.

“As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law,” McMahon wrote. “Nevertheless, (Marilyn Monroe Llc.) argues that her will should be construed as devising postmortem publicity rights that were later conferred on Ms. Monroe by statute. Such a construction is untenable.”

And while there are disputes as to whether Monroe’s home was in California or New York at the time of her death, “there is absolutely no doubt that she was not domiciled in Indiana,” McMahon wrote.

The majority of Monroe’s estate was left to legendary acting teacher Lee Strasberg, who left it to his wife, Anna Strasberg, when he died in 1982. It is managed by Indiana-based CMG Worldwide, which oversees the marketing of other deceased celebrities.

“There is no question ... that at the time of Ms. Monroe’s death in 1962, neither New York or California permitted a testator to dispose by will of property she did not own at the time of her death,” McMahon concluded. “Any argument that the residuary clause of Ms. Monroe’s will could devise a postmortem right of publicity is thus doubly doomed because the law in effect at the time of Ms. Monroe’s death did not recognize descendible postmortem publicity rights and did not allow for distribution under a will of property not owned by the testator at the time of her death.”

Additionally, McMahon said the Monroe estate’s case is “doomed because both the California and Indiana postmortem right of publicity statutes recognize that an individual cannot pass by will a statutory property right that she did not possess at the time of her death.”

Reuters/Hollywood Reporter

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