The Year of the Blond Bombshells - or - Time to Scour the Obituaries.

By Geoffrey Gerber

SUX 2B CMG — CMG Worldwide that is. On May 7, CMG took a sizable summary judgment hit. CMG and Marilyn Monroe, LLC, the companies previously claiming all of the rights to control/profit from the most famous nativity songbird of all time, lost their right of publicity claim against the Shaw Family Archives, Ltd. (and others). CMG took issue with the licensing of Marilyn photographs taken by Sam Shaw without also paying CMG its licensing fee for Marilyn's identity. Photographs taken by Sam Shaw can be seen at these websites. CMG took issue with Marilyn's image on a T-shirt and label (as shown in the Court record), and on a licensing website.

This is a very big deal. The Art Law Blog has had three posts on this decision.

So far, the journalists are outperforming the law bloggers on the analysis. To its credit, the Law Blog at the Wall Street Journal linked to the pre-decision Wall Street Journal story about the case, which has great background on the post-mortem commercialization of Marilyn's identity. The Art Law Blog had a link to CMG’s own Indianapolis Business Journal, which had a more thorough discussion of the possible ways this decision could play out.

Normally one of the better legal voices on intellectual property issues, The Center for Internet and Society misses the point in this case. The folks at Stanford read the case to hold “that Marilyn Monroe’s heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain.” That is not the holding.

The Trade Regulation Talk stated that “any publicity rights that Monroe enjoyed during her lifetime were extinguished at her death by operation of law.” This too, is not quite accurate.

This very important decision held that the post-mortem right of publicity could not be bequeathed by testamentary conveyance because the right did not exist at the time of Marilyn’s death. Accordingly, Marilyn Monroe, LLC — and by connection its agent CMG — did not acquire any post-mortem right of publicity because all of its rights arose from Marilyn’s will. The decision — extremely well-reasoned — does not hold Indiana’s attempt to create a retroactive post-mortem right invalid. It leaves that for another decision and leaves open the possibility that such a statutorily created right might vest in the dead celebrity’s statutory heirs.

The power of this decision and its future impact are not in suddenly delegating the post-mortem right of publicity to the public domain waste basket. Its power is in its sensible approach to a post-mortem right. Undoubtedly the decision will be appealed, either through a certified interlocutory appeal, or when the there is a final judgment; but, its careful position seems solid. According to the Indianapolis Business Journal, CMG manages a bundle of rights that “include branding rights, trademarks on Marilyn Monroe’s name and signature, and copyrights of certain photographs.” I suspect these trademarks and branding rights may be subject to attack if the putative owner has no corresponding right to Marilyn’s identity.

The real issue is how to fairly treat concurrent right of publicity and copyright rights in works, just as in the June Toney case last year (discussed in the Photoshop Blog and the Patry Copyright Blog). Surely it cannot be fair to require a photographer to negotiate a model contract for a post-mortem right of publicity that does not exist. Nor could it possibly be fair to make a photographer's heirs negotiate with a model's heirs over their respective inherited rights when the model and photographer could not have contemplated the issue.

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Drew Keane - July 21, 2007 11:49 AM

To add to the story:
CMG and MMLLC also filed against Tom Kelley and Milton Greene in a lawsuit similar to Shaw in New York.
California Judge Margaret Morrow sided with the Kelley and Greene in a summary judgment dated May 14, 2007, writing that "at the time of her death in 1962 Ms. Monroe did not have any postmortem right of publicity."

This is the same ruling that federal Judge Colleen McMahon in New York granted to the Shaw collection earlier in May.

Sam Edelman - July 21, 2007 12:12 PM

MMLLC has lost the Right of Publicity cases in New York and in California to photographers Tom Kelley Studios, Milton H. Greene Archives and The Shaw Family Archives.

Taking a different approach, other than the courts, CMG and MMLLC have hired lobbyists to change the laws in New York and California to avoid liability.
CMG introduced the "identity theft" amendment in New York last month that retroactively back dates the RoP 7 decades. The lawmakers saw through the ruse on this one sided legislation.

In California, Senator Keuhl is rushing through SB771 which makes California's right of publicity retroactive back to 1915, so that any celebrity who died a resident of California over the past almost-100 years would have a right of publicity that would pass automatically to his or her residuary beneficiaries.

The amendment to Section 3344.1 makes your use of your photo of a California celebrity that was legal when you licensed it, that past usage may now suddenly become illegal, subjecting you to liability, damages, punitive damages, and attorneys' fees.

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