Marilyn Monroe Estate Trying To Use Trademark To Enforce Publicity Rights Court Said It Doesn't Have
from the any-IP-will-do dept
As you may or may not recall, way back in the distant past of 2012, we discussed a somewhat important court ruling over publicity rights. The case concerned the estate of Marilyn Monroe, America's most famous long-dead Presidential-birthday crooner, and AVELA, a company that specializes in producing nostalgia merchandise. At issue were consumer products AVELA had affixed with images of Monroe and a then-recent change in California law that applied publicity rights to dead celebrities that had lived in the state at the time of their death. The Monroe Estate, which had long argued that Monroe did not live in California in order to evade paying the estate tax, suddenly reversed course and claimed California as Monroe's home afterall. The court saw through this and ruled that posthumous publicity rights didn't apply to Monroe.
But because the kind of people looking to bank off of the likeness of a relative who died five decades previously aren't the kind of people likely to give up on the endeavor simply because justice isn't on their side, the Monroe Estate is back, attacking the same AVELA company for the same perceived infractions, except now they're making their claims under the auspices of trademark law.
The Monroe Estate is now in court against AVELA, a company that specializes in nostalgia merchandise, and is asserting that goods featuring Monroe are a violation of trademarks. In a motion to dismiss, AVELA argued that the trademark claims are "a thinly veiled attempt to assert a right that does not exist — a right of publicity in Marilyn Monroe.”And so, with the judge's ruling, there will now be a court hearing over whether the public might be confused that a dead pinup model and actress may have zombie-endorsed some coffee mugs. Ain't America grand? There's quite a hill to climb for the Monroe Estate to demonstrate any kind of likelihood in customer confusion, as the death of Marilyn Monroe is kind of well-known. It ought also enter into the equation whether or not people even consider the idea of an endorsement when buying a trinket emblazoned with a historical figure's likeness. Past court cases are unlikely to help either.
In her opinion on Friday, U.S. District Judge Katherine Polk Failla spells out the difference between publicity rights and trademarks. "The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion," she writes. Shrugging off other objections including the implausibility of the Monroe Estate's ownership and the viability of a false endorsement claim on behalf of a deceased celebrity, the judge allows the lawsuit to proceed.
Of course, the Monroe Estate still has to win on the merits and this might not be clear cut. For instance, the opinion mentions a prior case where Fred Astaire’s widow sued over the “Fred and Adele Astaire Awards" and failed because the plaintiff was unable to show “that consumers will be deceived into believing that the late Fred Astaire endorsed defendants’ awards."While this case shouldn't take long to adjudicate if judged on the merits, what is clear is that this kind of harrassment legal action whereby one party loses a decision and simply decides to employ another form of intellectual property on the same grounds should be slapped around by the courts. IP law isn't done by shotgun blast, after all. Or, at least, it isn't by those with an ounce of integrity.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: marilyn monroe, publicity rights, trademark
Companies: avela
Reader Comments
Subscribe: RSS
View by: Time | Thread
[ link to this | view in chronology ]
Why not?
No one should be surprised when a leech drinks blood from it's host, the same applies with the parasites known as 'estates'.
[ link to this | view in chronology ]
and this is why
any money it made during that time dad mom or whomever can leave to relatives after said estate taxes and other debts etc are all paid off.
[ link to this | view in chronology ]
Re: and this is why
[ link to this | view in chronology ]
Re: Re: and this is why
Maybe make them treat employees a bit better.
[ link to this | view in chronology ]
Re: Re: and this is why
Of course, this case has nothing to do with copyright, making this thread quite the non sequitur.
[ link to this | view in chronology ]
Re: Re: Re: and this is why
Physical property is notably different than temporary government granted monopoly rights, for several reasons and in several ways, but the largest is probably that the latter comes with certain expectations regarding them, mainly that they come with a cost, that of transfer of ownership after a certain time as a trade off for the legal protections before that point.
A creator is quite welcome to pass down the physical gains they made from their creations, the money, the property bought with it, and that sort of thing, but copyright is intended to be a deal, one between the creator and the public, where the creator gets certain temporary privileges with regards to their creations at the cost of the public's ability to do certain things, with the understanding that after the temporary time limit is up, ownership rights over the creation is transferred to the public so that the work can be shared, built upon, and used to create the next batch of creations.
Copyright, at least in the US, is ultimately intended to benefit the public, that it benefits creators is almost a side-effect. The benefit to the creators is the means, but not the goal.
[ link to this | view in chronology ]
Re: and this is why
[ link to this | view in chronology ]
Re: Re: and this is why
[ link to this | view in chronology ]
Re: Re: Re: and this is why
[ link to this | view in chronology ]
Re: and this is why
If we tie copyright to life spans (i.e it becomes public domain at death), then you WILL see Disney and the like hiring assassins in order to save money.
[ link to this | view in chronology ]
Marilyn Monroe
WHo is the estate???
I dont think she had any children...
The Estate of Marilyn Monroe LLC is a joint venture composed of the star's original estate, Neca Inc., and licensing company Authentic Brands Group LLC. Authentic Brands also licenses the rights of publicity for other dead celebrities, including famed reggae star Bob Marley, according to the company's website.
To many Neca Inc to find the proper one..
[ link to this | view in chronology ]
Estate taxes
So that means they owe 50 years of state taxes and fines and possibly tax returns on every penny they have made over the past 50 years. I would not like to be the person that has to figure out how much they owe to California but if it is found that they purposefully hid the facts and lied for 50 years it will be multi millions. Hopefully for us all they lose the case but also hopefully they have to pay so much money in taxes and fines that they go bankrupt and shut down never to be heard of again.
[ link to this | view in chronology ]
Huh? What? How can they live in a state when they're dead? Don't you just mean celebrities who died in that state? :)
[ link to this | view in chronology ]
Legal Confusion
And so, with the judge's ruling, there will now be a court hearing over whether another judge might be confused that a dead pinup model and actress may have zombie-endorsed some coffee mugs. Ain't America grand?
Fixed it for you.
And YES! America IS grand.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
[ link to this | view in chronology ]