Courts Put “Dead Celebrity” Rights of Publicity in Limbo

District courts in New York and California sent a shock wave through the “dead celebrity” licensing industry in May, ruling in two separate decisions that Marilyn Monroe’s will did not pass her right of publicity to the residual beneficiaries of her estate.  The rulings, which put in doubt the ownership interests of other deceased celebrities’ estates, have provoked a flurry of lobbying activity aimed at changing the state laws under which the courts’ rulings were decided.

The right of publicity gives individuals the right to control and profit from commercial exploitation of their name, likeness and persona.  In nearly every state that recognizes it, the common law right of publicity, like other privacy rights, terminates upon death.  However, in recent decades, many states have enacted statutes providing for a descendible right of publicity that endures for a specified period of years after death.  California passed such a law in 1984.  Under it, the posthumous right of publicity is transferable by contract, trust or testamentary instrument and, if not so transferred, is enforceable by a statutory list of heirs. 

Marilyn Monroe left the bulk of her residual estate to her acting teacher Lee Strasberg.  On his death, his wife Anna stepped into his shoes. She took the position that Monroe’s statutorily resurrected postmortem publicity rights passed to her and the other beneficiary named in the residual clause of Monroe’s will. Based on this heretofore unchallenged assertion, they set up Marilyn Monroe, LLC (“MMLLC”), transferred Monroe’s publicity rights to it, and, with the assistance of mega-licensing agent CMG Worldwide, embarked on a licensing program that has plastered Monroe’s image on everything from T-shirts to trinkets and garnered them millions of dollars. 

Enter the heirs of photographers Sam Shaw, Milton Green and Tom Kelly, Sr., each of whom took legendary photographs of Monroe during her lifetime. The photographers’ heirs own the copyrights in these photos. But, any commercial use of them necessarily implicates Monroe’s right of publicity. Tired of haggling with MMLLC and CMG over who would get what share of the license fees paid by commercial users of the photographs, the heirs began to independently license their use on T-shirts. As was undoubtedly expected, MMLLC and CMG sued.

In both suits, the photographers’ heirs argued that Monroe’s will could not have devised her postmortem right of publicity because (1) the law in effect at the time of Monroe’s death in 1962 did not recognize a posthumous right of publicity and, hence, Monroe’s right of publicity died with her, and (2) under the probate laws in effect at that time, a will could not distribute property that was not owned by the testator at the time of her death.

Judges McMahon, of the U.S. District Court for the Southern District of New York, and Morrow, of the U.S. District Court for the Central District of California, agreed. Shaw Family Archives Ltd. v. CMG Worldwide, Inc. 486 F.Supp.2d 309 (S.D.N.Y. 2007); The Milton H. Greene Archives, Inc. v. CMG Worldwide, Inc., 05 CV-2200 (MMM).  They noted that, at the time of her death in 1962, Monroe did not have a postmortem right of publicity under the law of any relevant state. As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law. Because probate law did not allow Monroe’s will to dispose of a property right she did not own when she died, the two courts held that Monroe’s residual beneficiaries did not inherit her right of publicity. The result left MMLLC with no standing to control or challenge third party commercial use of Monroe’s name, likeness or persona.

Generally, an individual’s postmortem right of publicity is governed by the law of the state in which the individual was domiciled at the time of death. In other contexts, Monroe’s estate has consistently maintained that she was domiciled in New York at the time she died. In these cases, however, a New York domicile would have doomed MMLLC’s ownership claim, as New York recognizes no postmortem right of publicity.

This prompted MMLLC and CMG, which is based in Indiana, to argue that the courts should apply a 1994 Indiana statute that recognizes a postmortem right of publicity in Indiana regardless of the individual’s state of domicile. In contrast, the photographers argued that New York law should govern, or, in the alternative, the law of California under which there was no recognized postmortem right of publicity at the time of Monroe’s death. As it turned out, the courts found it unnecessary to resolve whether Monroe’s publicity rights were governed by New York, California or Indiana law because all three states follow the rule that a will cannot devise property that the testator did not possess at the time of death.

In the wake of these decisions, the state legislatures of California and New York are under pressure to enact legislation to reverse Green and Shaw.  The Screen Actors Guild, CMG, MMLLC, and various other celebrity estates are lobbying the California legislature to pass a bill (S.B. 771) under which the right of publicity would be freely descendible by means of any testamentary instrument executed before or after January 1, 1985, the effective date of California’s right of publicity statute. Under the bill, these rights would be deemed to have existed at the time of death of any person who died prior to January 1, 1985, and would vest in the persons entitled to those property rights under the deceased person’s will or other testamentary instrument in effect as of the date of his or her death.  In the absence of an express transfer or bequest of the publicity rights, they would pass to the beneficiaries of the decedent’s residuary estate.

An even more radical bill – introduced as Senate bill 6005 and Assembly bill 8836 – was put forth in New York prior to the legislature’s summer recess and may be reintroduced this fall. It would retroactively recognize a postmortem right of publicity that endures in perpetuity, prohibiting any commercial use of the name, voice, likeness or signature of any person who died after January 1, 1938 without written permission of the person’s heirs or estate. This would place New York in the forefront of right of publicity protection, a radical change in light of the state’s historic refusal to confer any postmortem protection on publicity rights. Arguing that its broad language would violate the First Amendment and severely disrupt existing business relationships, the American Society of Media Photographers (“ASMP”) has taken a strong position against the bill. If  it is adopted despite such opposition, the ironic legacy of Green and Shaw would be a major shift of the legal landscape in favor of enforceable postmortem publicity rights.