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Julie Garber

Marilyn Monroe's Estate Loses Court Battle Over Publicity Rights

By September 5, 2012

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Marilyn Monroe's estate has lost its legal fight to prevent a company controlled by the son of fashion and celebrity photographer Milton H. Greene from selling Monroe's images without paying the estate for publicity rights.

According to the website for Milton H. Greene Archives, Inc., Greene "first encountered Marilyn Monroe on assignment for Look Magazine. They quickly became close friends and ultimately formed their own film production company which produced Bus Stop and The Prince and the Showgirl. Before marrying Arthur Miller, Monroe lived with Milton and his family in their Connecticut farmhouse ... During their ten years together, Greene photographed Monroe in countless photographic sessions including the famous "Black" sitting."

The question decided in Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC was whether the actress's heirs inherited a right of publicity through the residuary clause of her Last Will and Testament. The key to deciding the case revolved around where Marilyn Monroe was domiciled at the time of her death. If it was California, where she was found dead in her Brentwood home, then her heirs would in fact have posthumously inherited her publicity rights under California law. However, if it was New York, where she signed her Last Will and Testament and owned a fully furnished and staffed apartment, then her heirs would not have inherited any publicity rights since New York law does not recognize posthumous rights to publicity.

In its August 30 decision, the United States Court of Appeals for the Ninth Circuit ruled that since the original executor of Marilyn Monroe's estate, New York attorney Aaron Frosch, and later heir and successor executor Anna Strasberg, asserted consistently for at least 40 years that Monroe was domiciled in the state of New York at the time of her death, New York law prohibits Monroe's estate from enforcing the actress's posthumous rights to publicity.

In the Greene case Monroe's estate had tried to claim that the actress was really domiciled in California at the time of her death and for years Mr. Frosch and then Ms. Strasberg had simply mistakenly asserted Monroe's domicile as New York. The Ninth Circuit shot down this argument, stating: "Monroe's representatives took one position on Monroe's domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe's death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, 'If you're going to be two-faced, at least make one of them pretty.' There is nothing pretty in Monroe LLC's about-face on the issue of domicile."

The court concluded: "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 that fifty 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.' "

In response to the decision, The Estate of Marilyn Monroe LLC, which now controls the estate, contends that only publicity rights under state law were affected and all federal rights remain intact: "The Estate still enjoys the exclusive right to use Marilyn Monroe's signature, name, likeness, image, voice, or anything else associated with her persona." As I have reported before, the estates of dead celebrities are big business, with Ms. Monroe's estate coming in third in 2010 - 2011 with $27 million in earnings - she was only topped by Michael Jackson and Elvis Presley.

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