Marilyn Monroe Estate Trying To Use Trademark To Enforce Publicity Rights Court Said It Doesn't Have

from the any-IP-will-do dept

Thu, Sep 24th 2015 3:48pm — Timothy Geigner

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.”

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.

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.

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.

282304185 a v E L a v Estate of Marilyn Monroe Pdf (PDF)282304185 a v E L a v Estate of Marilyn Monroe Pdf (Text)

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

17 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Anonymous Coward, 24 Sep 2015 @ 5:34pm

Greed almost always cancels integrity, ethics, and responsibility.
[ link to this | view in thread ]
That One Guy (profile), 24 Sep 2015 @ 5:59pm

Why not?
Pretty much the entire purpose behind 'estates' like this is to squeeze as much money as possible from the creations(or in this case likeness/name) of a corpse. If they can't do that, then they don't get money, and if they don't get money, they might have to actually create something of their own other than billable hours.

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 thread ]
Guardian, 24 Sep 2015 @ 6:02pm

and this is why
and this is why ...when an author, creator dies....the work should 100% go into public domain....

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 thread ]
That One Guy (profile), 24 Sep 2015 @ 6:14pm

Re: and this is why
While I don't believe copyright should last the entire duration of the creator's life, I do believe that if it absolutely has to, at the absolute minimum it does indeed need to end at their death. Corpses don't need money, and the deal of copyright is a deal between the public and the creator, not their relatives.
[ link to this | view in thread ]
Atkray (profile), 24 Sep 2015 @ 8:54pm

Re: Re: and this is why
And since a company cannot die they should not be able to hold copyrights. They should be assigned to the creators or placed in the public domain.

Maybe make them treat employees a bit better.
[ link to this | view in thread ]
ECA (profile), 25 Sep 2015 @ 12:57am

Marilyn Monroe
lETS ASK A QUESTION:

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 thread ]
Anonymous Coward, 25 Sep 2015 @ 1:50am

Re: and this is why
What did Marilyn create?
[ link to this | view in thread ]
andy, 25 Sep 2015 @ 2:00am

Estate taxes
Wow they have admitted to obscuring the facts and demanding that she never had a home in california, now 50 years later due to new laws in california they say she did most defiently have homes there.

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 thread ]
Lisa Westveld (profile), 25 Sep 2015 @ 4:03am

Quote: "dead celebrities that had lived in the state at the time of their death."
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 thread ]
Benefacio, 25 Sep 2015 @ 4:12am

Legal Confusion
Ahh, but American trademark law is not about public confusion but judicial confusion. Therefore...

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 thread ]
Dan (profile), 25 Sep 2015 @ 5:49am

Re: Re: and this is why
Corpses don't need money, or houses, or cars, so when someone dies, everything he owns should go into the public domain. I don't expect you'll agree with this, but how is it fundamentally different?

Of course, this case has nothing to do with copyright, making this thread quite the non sequitur.
[ link to this | view in thread ]
That One Guy (profile), 25 Sep 2015 @ 6:28am

Re: Re: Re: and this is why
Money isn't given special legal protections with the understanding that after a certain amount of time has passed so will ownership of it. Houses aren't bought with the prospect that after a certain point the ownership will be passed to the public. People don't buy cars where the terms are that after a certain point everyone else can drive it, and until then it will receive special legal rights by taking them away from everyone else.

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 thread ]
Anonymous Coward, 25 Sep 2015 @ 8:02am

I thought Marilyn Monroe was dead.
[ link to this | view in thread ]
jupiterkansas (profile), 25 Sep 2015 @ 8:30am

Re: Re: and this is why
Boners
[ link to this | view in thread ]
zboot (profile), 25 Sep 2015 @ 9:02am

To be fair, if this was Tupac, they might have a case. Is he really dead? Really?
[ link to this | view in thread ]
Anonymous Coward, 25 Sep 2015 @ 9:36am

Re: and this is why
I do not wish copyright to be tied to a creator's death - it should be x years, period (I'm all in favor for 14 years after which it's public domain for personal use, maybe 28 years for commercial use). If anything is going to be successful and make any money, it's usually in it's first few years, after which it significantly drops off - why shit has to be locked up for 100+ years is just ridiculous).

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 thread ]
Anonymous Coward, 26 Sep 2015 @ 1:08am

Re: Re: Re: and this is why
Does she hold the copyright to those? 'Cause I'm not feeling it.
[ link to this | view in thread ]