Lawyer Tries To Prevent Yale From Using Photo Of Joe DiMaggio & Marilyn Monroe On Book About The Two

from the this-is-not-what-ip-law-is-about dept

Copycense points to the news of how the executor of Joe DiMaggio's estate is threatening to sue Yale University Press for using a photo of DiMaggio with Marilyn Monroe, with whom he was famously (if briefly) married, in a book about DiMaggio's relationship with Monroe. Morris Engelberg, who has been an aggressive protector of DiMaggio's image since his death is claiming this is not allowed:

"We will not authorize any photo of Joe DiMaggio and Marilyn Monroe ... to be on the jacket of any book," he responded in a letter dated Sept. 28. "This was a 'no-no' in Mr. DiMaggio's lifetime," the attorney wrote.

"We have respected Mr. DiMaggio's wishes that there be no commercial or other venture depicting" Joe and Marilyn.

The thing is... it's not clear that DiMaggio (and now Engelberg) actually have the right to prevent that. Think about it: if a newspaper simply was reporting on DiMaggio and Monroe, and snapped a photo of the two, that's perfectly legal. So why wouldn't the same be true for a book. While this is only at the "threat" stage, so it's not clear what laws Engelberg would actually rely on, you'd have to imagine it would be yet another attempt at using a publicity rights claim. As we've been discussing lately, publicity rights have suddenly become quite popular, and the law around it is really troubling in how it prohibits all sorts of speech. Right now, of course, publicity rights law is very much in flux, and dependent on various state laws and ever changing caselaw. My guess is that Engelberg might be more bark than bite, because losing a lawsuit like that could have some pretty serious consequences.

While it might not be entirely relevant, this threat reminds me of the story we had a couple years ago about an attempt by Marilyn Monroe's estate to use a publicity rights claim. Apparently, her estate had convinced California tax authorities that Monroe was a New York resident, to avoid paying taxes on the estate in California. The problem? New York's publicity rights laws only applied to living people, not dead. California has posthumous publicity rights. So, when the estate tried to claim California publicity rights, it was rejected, because of the whole "NY resident" thing. The ruling there basically said Monroe no longer had publicity rights. So that doesn't bode well for Engelberg's threats... though I'm guessing that DiMaggio probably qualified as a California resident (despite playing for the Yankees, he was famous as a San Francisco native), so perhaps that's what he's banking on.

Filed Under: fair use, joe dimaggio, marilyn monroe, morris engelberg, publicity rights