Marilyn Monroe's Persona Belongs To The Public; Estate Can't Retroactively Move Her To California

from the we-knew-she-belonged-to-the-public dept

Marilyn Monroe once said:

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.

But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.

But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.

However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.

Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:

Monroe LLC also suggests that it has always believed that Monroe died domiciled in California, and that Frosch was simply mistaken in his belief and representations because he did not have access to some documents that allegedly contradict the materials and declarations he relied upon. This assertion by Monroe LLC is dubious, at best. Frosch had contemporaneous access to people knowledgeable about Monroe’s intentions, including Ralph L. Roberts, her close friend and confidant and reportedly the last person to see her alive. To the extent that there was any debate, Frosch represented, with significant evidentiary support, that Monroe’s intention was to remain domiciled in New York, though she temporarily relocated to California for a movie shoot. Another possibility, for which we have insufficient evidence, is that Monroe LLC’s present position on Monroe’s domicile is a knowing misrepresentation, or tantamount to a fraud on the court. In light of this irreconcilable conflict between diametrically opposed representations about Monroe’s intended domicile, the district court’s determination that Frosch intentionally misled the courts is supported by “inferences that may be drawn from the facts in the record” and is therefore not an abuse of discretion.

The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:

This is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty." There is nothing pretty in Monroe LLC’s about-face on the issue of domicile. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from “playing fast and loose with the courts.”

Amazingly, even after this loss, her estate is still insisting that it retains control over her likeness. According to Reuters:

The star's estate, however, said it still retained exclusive rights to the film star's likeness under federal law.

Except, there is no federal publicity rights law. So now they appear to just be making stuff up. I imagine that won't play very well in court either.

Filed Under: california, marilyn monroe, new york, posthumous publicity rights, publicity rights