Ninth Circuit Shuts Down Marilyn Monroe Estate’s Likeness Claims

Los Angeles – The Ninth Circuit on Thursday demolished an attempt by the estate of iconic actress Marilyn Monroe to claim the right of publicity to her likeness under California law, saying the estate has repeatedly and forcefully argued in the past that she was a New York resident at the time of her death.

Marilyn Monroe LLC began a legal wrangle in 2005 with Milton Greene Archives Inc. and Tom Kelley Studios Inc., in which the estate claimed Milton Greene was violating the estate’s rights by using Monroe’s image and likeness for unauthorized commercial purposes. Milton Greene argued that the estate owned no such right of publicity.

The estate asserted that it inherited Monroe’s right of publicity, which was created and deemed posthumous by the states of California and Indiana decades after her death, through a residual clause in her last will and testament. The will was subject to probate in the state of New York, which does not recognize a posthumous right of publicity, the court said.

Because Monroe’s executors consistently represented during the probate proceedings and elsewhere that she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, the estate is now judicially estopped from asserting California’s posthumous right of publicity, the appeals court ruled, affirming the Central District of California’s ruling in the case.

Monroe was found dead in her Brentwood, California home on August 5, 1962, a few months after being kicked off 20th Century Fox’s production of Something’s Got To Give, but she maintained her New York apartment and staff throughout that period, according to the appeals court. She had executed her last will and testament in New York a year and a half prior to her death, and named a New York attorney as executor, the court said.

In May 2007 the California district court ruled in favor of Milton Greene. In direct response California State Senator Sheila Kuehl introduced Senate Bill 771 in June 2007. The bill stated that the California statutory right of publicity could be deemed to have existed at the time of death of any deceased personality who died before January 1, 1985 and is a transferable property right that could pass through the residual clause in the will of the deceased personality.

After the bill passed, the estate sought reconsideration of the district court’s grant of summary judgment for Milton Greene. The district court said the law did apply retroactively and, as amended, permitted Monroe’s right of publicity to pass to Monroe LLC through the residual clause of her will, if California’s substantive right of publicity law applied.

Unlike the California legislature, though the New York legislature had rejected Monroe LLC’s efforts to amend its laws to enact a similar descendible, posthumous right of publicity, the district court said. If New York law applied, which it would if Monroe was domiciled in New York at the time of her death, Monroe’s right of publicity would have been extinguished at her death, the court said.

Given the estate’s many efforts over more than 40 years to argue that Monroe was living in New York when she died, principles of judicial estoppel preclude Monroe LLC from advocating that Monroe was domiciled in California when she died, the district court ruled and the appeals court affirmed.

“Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty,” the Ninth Circuit’s opinion said. “There is nothing pretty in Monroe LLC’s about-face on the issue of domicile.”

“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,'” the appeals court said.