Marilyn Monroe loses publicity rights


By Andrew Hudson Published: September 5, 2012 Updated: February 2, 2016

“An enduring American celebrity, Marilyn Monroe continues to inspire both admiration and litigation a half-century after her death.”
Greene v. Monroe, 2012

The world’s highest-paid dead woman has lost her earning power. Marilyn Monroe pulled in $27 million in 2010 despite having died 50 years ago, but an appeals court has sided with a photographer and denied her estate the protection of California’s generous post-mortem publicity rights — which were written mainly for the Monroe estate. Her likeness is presumably now in the public domain.

“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.”
Marilyn Monroe, as quoted by Judge Wardlaw in Greene v. Monroe, 2012

The case hinged on where Monroe legally resided upon her death. The estate originally chose New York to save on taxes, but then claimed California for the publicity rights. But the court ruled that only the first choice could count, due to judicial estoppel, which prevents a party from benefitting from two mutually-exclusive positions.

“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.”
Greene v. Monroe, 2012

The Case

The case was Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC and CMG Worldwide Inc., August 30, 2012, under the Ninth Circuit Court of Appeals. Here are some quotes from the majority opinion by Judge Kim McLane Wardlaw:

“If Monroe LLC were to succeed in establishing ownership of Monroe’s right of publicity, Milton Greene’s ability to commercially exploit the photographs that it created and in which it owns copyrights would be subject to Monroe LLC’s control. … Because no such right exists under New York law, Monroe LLC did not inherit it through the residual clause of Monroe’s will, and cannot enforce it against Milton Greene or others similarly situated.”
Greene v. Monroe, 2012

“[Because] Monroe’s executors … [said] she was domiciled in New York at her death to avoid payment of California estate taxes, among other things, appellants are judicially estopped from asserting California’s posthumous right of publicity.”
Greene v. Monroe, 2012

The Story

Marilyn Monroe (1926–1962) was a model, movie star, and celebrity sex icon — the perfect subject for a photographer.

“In 1999, Monroe was ranked as the sixth greatest female star of all time by the American Film Institute. In the decades following her death, she has often been cited as both a pop and a cultural icon as well as the quintessential American sex symbol.”
Wikipedia

Marilyn & Milton

In 1953, Marilyn Monroe met fashion photographer Milton Greene on a shoot for Look magazine. The two became friends and Greene quit his job and mortgaged his home to support Monroe. She lived with him and his family in Connecticut, where several key photos were made. Monroe died in 1962, and Greene died in 1985.

Monroe’s estate went mainly to her acting coach, Lee Strasberg. This particular lawsuit was filed in 2005 by Lee Strasberg’s widow, Anna Strasberg. There has been no shortage of lawsuits between Milton H. Greene Archives and CMG Worldwide Inc., Marilyn Monroe LLC, and The Estate of Marilyn Monroe, LLC.

“In March 2005, Marilyn Monroe LLC and its licensee, CMG Worldwide, Inc., sued Milton Greene Archives, Inc. … claiming ownership of Marilyn Monroe’s right of publicity and alleging that Milton Greene was violating Monroe LLC’s rights by using Monroe’s image and likeness for unauthorized commercial purposes, including the advertising and sale of photographs of Monroe.”
Greene v. Monroe, 2012

“If Monroe LLC were to succeed in establishing ownership of Monroe’s right of publicity, Milton Greene’s ability to commercially exploit the photographs that it created and in which it owns copyrights would be subject to Monroe LLC’s control.”
Greene v. Monroe, 2012

Where did Monroe Live?

At the time of her death, Marilyn Monroe had been living both in California and New York, so her heirs could choose where to register her. They chose New York, to avoid the larger estate taxes of California. But now California has the more attractive publicity rights on her name, image and likeness, whereas New York offers no post-mortem publicity rights. So can the Monroe estate use the California law?

No, said lower courts, and the Ninth Circuit agreed. The ruling was based on judicial estoppel, a legal doctrine preventing a party offering inconsistent positions.

“Because Monroe died domiciled in New York, New York law applies to the question of whether Monroe LLC has the right to enforce Monroe’s posthumous right of publicity. Because no such right exists under New York law, Monroe LLC did not inherit it through the residual clause of Monroe’s will, and cannot enforce it against Milton Greene or others similarly situated.”
Greene v. Monroe, 2012

“Judicial estoppel generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase.’”
Pegram v. Herdrich, 2000

The court even quoted Monroe herself:

“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 dieddomiciled in California.”
Greene v. Monroe, 2012

Where Now for the Monroe Estate?

“Because no such right exists under New York law, Monroe LLC did not inherit it … and cannot enforce it against Milton Greene or others similarly situated.”
Greene v. Monroe, 2012

Undeterred, the Monroe estate says it retains exclusive rights to the film star’s likeness under federal law. However, there is no federal publicity law. So presumably only copyright and trademark law would apply, which are rather different.

“The Estate still enjoys the exclusive right to use Marilyn Monroe’s signature, name, likeness, image, voice, or anything else associated with her persona.”
The Estate of Marilyn Monroe LLC in a statement, August 30, 2012.

But the lawsuit itself maybe moot now. In 2010, Authentic Brand Management and partner NECA) acquired both The Estate of Marilyn Monroe (for $20M to $30M) and signed an exclusive agreement to represent the Marilyn Monroe photography of Milton H. Greene.

“Marilyn Monroe occupies a one-of-a-kind, iconic position in film history and American culture. Having the exclusive rights to license these photography collections along with her name and likeness is significant because for the first time the Marilyn Monroe brand will be unified worldwide.”
— ABG CEO Jamie Salter, June 2011

AVELA lawsuit

Update: Nov 3, 2015: The Monroe estate won a summary judgement to proceed with a federal trademark claim of false endorsement against publisher AVELA. For more information, see celebrity trademarks.

The Highest-Paid Deceased People

The court cited Forbes’ “Top-Earning Dead Celebrities” list, showing that Monroe earned $27 million last year alone, 49 years after she died.

Top-Earning Dead Celebrities of 2011

According to Forbes
October 2010 to October 2011

RankNameYear diedAgeEarnings
1Michael Jackson200950$170M
2Elvis Presley197742$55M
3Marilyn Monroe196236$27M
4Charles Schulz200077$25M
5John Lennon198040$12M
6Elizabeth Taylor201179$170M
7Albert Einstein195576$10M
8Theodor Geisel (Dr. Seuss)199187$9M
9 (tie)Jimi Hendrix197027$7M
9 (tie)Stieg Larsson200450$7M
9 (tie)Steve McQueen198050$7M
Data from Forbes, October 2011. Estimate of estimate each star’s gross earnings (before taxes, management fees and other costs) between October 2010 and October 2011.

Coming Soon

Expected later this year is ruling on Jimi Hendrix and Washington State’s publicity rights law.

Source: Eriq Gardner at The Hollywood Reporter, Reuters, AP via The Washington Post, Milton H Greene Archives Inc..

Next page: Amazon Kindle Fire HD 8.9 — an iPad rival

Comments

Comments


Reply by Joe Williams

May 22, 2016

Hi

I want to use an image of Marilyn Monroe for a clothing design, it’s the one of Marilyn on her deathbed surrounded by people. Do you think there would be licensing issues with this? Thanks!


Reply by Andrew Hudson, PhotoSecrets

June 7, 2016

Yes. Although there may not be publicity rights for Marilyn (I believe there is still litigation on that issue), the photo probably has copyright. Thus you would need to get permission from the copyright holder, which may be the photographer and/or a news agency and/or licensing agency.

Since your use if commercial (you are using the image to sell clothing), you should get advice from an intellectual property attorney.


Reply by Anonymous

November 27, 2015

I am designing a series of painted purses. I plan to paint potraits of Marilyn Monroe on the purses and adding embellishments. I noticed you mentioned shutter stock earlier. If I license the images, how long can I use them for?


Reply by Andrew Hudson, PhotoSecrets

January 8, 2016

How long can I use Shutterstock images for? I believe there is no time-limit in the Shutterstock license, so you can use the licensed images forever.

Why do Walmart and Walgreens make me sign a paper? This is a legal requirement, following a lawsuit against Kinko’s (see photocopying.

How do I go about releasing copyrights — can I just type up documentation and sign? Yes, that is what you do.

Does it need to be notarized? No.


Reply by Anonymous

November 23, 2015

Hi there,

I’m designing prints for T-shirts in Germany. I wanted to paint Marilyn Monroe (no copy of a photograph). Our shirts sell on eBay and Amazon.

Now I’ve done some research and found some trademark files for her name (in German, "Wortmarke" - denominative mark description).

Does this mean I can’t make a design with a self created portrait of her and name it "Marilyn Monroe"? Do the legal rights you describe apply in Germany as well?

Really looking forward to an answer. :)


Reply by Andrew Hudson, PhotoSecrets

January 8, 2016

Wow! What an incisive and topical question! You got me spinning for two days, researching and writing a new article on celebrity trademarks. It turns out that, on Nov 3, 2015, the Marilyn Monroe estate won a summary judgement allowing them to pursue a U.S. federal trademark claim of false endorsement. We’ll have to wait and see how that gets resolved.

Generally, trademark law protects customers from confusion as to the source of products. So, to avoid a trademark issue, make it apparent that your product is not endorsed by the Monroe estate. (Note that I am not a lawyer and this is not legal advice).

In 1998, a case involving T-shirts of Three Stooges ruled that unaltered photos were trademark violation, but altered images might not be.

“The silkscreens of Andy Warhol ... have as their subjects the images of such celebrities as Marilyn Monroe, Elizabeth Taylor, and Elvis Presley. Through distortion and the careful manipulation of context, Warhol was able to convey a message that went beyond the commercial exploitation of celebrity images and became a form of ironic social comment on the dehumanization of celebrity itself. Such expression may well be entitled to First Amendment protection.”

— Comedy III Productions, Inc. v. Gary Saderup, Inc., 68 Cal. App. 4th 744 (Cal. Ct. App. 1998).

Recent cases for Bruce Lee (2013) and Bob Marley (2015) have also ruled for trademark infringement with images on T-shirts.

“a celebrity may assert a false endorsement claim where the defendant uses the celebrity’s persona without permission to suggest false endorsement or association.”

— Bruce Lee v Avela, 2013

“Defendants thus do not qualify for the fair use defense; the use of Bruce Lee’s likeness and name was intended to sell the t-shirts, not describe them.”

— Bruce Lee v Avela, 2013

“while use of the photographs themselves may be permitted under the Copyright Act, use of Bruce Lee’s image, likeness, and persona subject Defendants to liability for violating Lee’s right of publicity.”

— Bruce Lee Enterprises, LLC v. A.V.E.L.A., Inc., 2013 WL 822173 (S.D.N.Y.)

“[Trademark infringement as publisher] used Marley’s image on t-shirts and other merchandise, in a manner likely to cause confusion as to plaintiffs’ sponsorship or approval of these t-shirts and other merchandise.”

Fifty-Six v AVELA, 2015

I do not know the law in Germany.

“The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion.”

AVELA v Monroe estate

“celebrities hold a ‘trademark-like interest in their name, likeness, and persona that may be vindicated through a false endorsement claim’ under Section 43(a).”

Avela v Marilyn Monroe, SD New York 2015

For more information, see celebrity trademarks.


Reply by Tamaruni

September 2, 2015

Hi, Andrew. This is a fun one.

Well, for me!

Well. My daughter, an art major, personally painted an image of Marilyn Monroe -- in oil-- upon being employed by one of those businesses which are springing up all over that hire artists to lead groups of people to paint paintings whilst they drink wine.

After being hired, my daughter painted Marilyn Monroe and under their employ, has taught groups of people to paint that same painting so that, at the end of the evening, each person in a group goes home with their own best effort at copying the painting.

Fast forward... each person keeps their own painting.. it is theirs. I would like to use this fab painting which my daughter created, as a cover page for a story (not about Marilyn, but one of the characters like her) :) ....

Question.... since my daughter created the painting. .. does she have rights to it, to sell, distribute, profit from..and call it hers? My friend is an attorney, but she’s in the area of family law and criminal defense.. a far cry from this subject; but she aided some sort of case several years ago in a far flung county, which probably had one catch all judge that seemed similar in to my current question...and she insists that, surely, my daughter would have all rights to all the works she has personally painted during her employ, even if the company utilized her paintings to entertain others who painted the same thing, profiting from the entertainment while my daughter earned a salary. Whew! What do you think? :)


Reply by Andrew Hudson, PhotoSecrets

January 12, 2016

Hi Tamaruni,

This depends upon what you mean by “being employed.”

If your daughter was a full-time employee (40 hrs/week, salary, benefits, vacation time, etc.), then everything she created within the scope of her job belongs to her employer. This includes copyright in her painting. For more info, see works made for hire. Tough break. But, since she is so experienced at this, perhaps she can make a painting in her own time for you.

Instead of an employee, your daughter may have been an independent contractor (hired for specific classes, part-time, free to do other projects). In that case, unless there was a written agreement otherwise, she would retain copyright. Thus, she has rights to it, and can sell, distribute, profit from, and call it hers. Congratulations.

But did she copy her painting from a photo? If so, then that underlying photo probably has a copyright. Her painting would be a derivative work, where she owns copyright only in her creative contribution, not the photo. This is similar to the Obama “Hope” poster, where the artist could sell his work but should have gotten permission from the copyright holder of the underlying photo. If the image was a movie still, then the copyright holder is likely the movie studio since, as you now know, the photograph was a work-made-for-hire.


Reply by Azur

August 11, 2015

Hello Andrew,

I’m currently working on a short film (that might become a feature) which has the name "Marilyn" in the title and the main character dresses with 7 different dresses from Monroe movies, and there is a scene in which she is a stage actress reciting 4 paragraphs of a scene in "Some Like it Hot" but translated into Spanish. In the next scene we see a theater poster that reads, in Spanish: Adaptation of "Some Like It Hot" by Billy Wilder. Do I need to contact all this people to be able to release my movie?


Reply by Andrew Hudson, PhotoSecrets

January 13, 2016

Hi Azur,

I am not a lawyer and this is not legal advice.

My opinion is that using “Marilyn” in the title, using similar dresses, and having an actor play Marilyn are probably OK. The four paragraphs may be an issue as the script probably has copyright protection and using the excerpt may or may not be an infringement. I was just reading that the producers of “Selma” were not allowed to use excerpts from Dr. Martin Luther King’s speeches, and instead had to make up their own version.

You should contact a local lawyer for specific advice.


Reply by Anonymous

March 15, 2015

Hi Andrew,

I did a mixed media work using this image of Marilyn: marieclaire.media.ipcdigital.co.uk/11116/000077784/d9e1/Marilyn-Monroe-thumb.jpg. I changed it up quite a bit. I made her dress colorful and used paint and other materials to make it pop and I also changed her hair. So the only part of the image I used was her face, arms, torso, and legs (not feet). Is this changed enough to sell?


Reply by Anonymous

December 31, 2014

Hi Andrew,

I visited an antique/thrift store and I asked if I could take pictures with my camera and the store owner/manager said it was fine. I came across a black and white poster of Marilyn that they were selling. I decided to shoot the image because I liked her. The crazy thing is after I saw the image on my LCD it turned out way different than the original. Within the image and around the image (door frame, etc...) many elements that were behind me got absorbed in to the image and produced and eerie montage of things with her in it. I’m wondering if I can sell the image and copyright my photography image that I produced? BTW the antique/thrift store does not exist anymore.


Reply by Andrew Hudson, PhotoSecrets

January 26, 2015

Hi,

This is called “derivative work”. You can copyright the additional artistry you added to the image, but the original image still has copyright (if it had copyright).

Things get complex fast with derivative works, and there are no set rules. There are several possibilities in your case, depending on the status of the poster and the amount you used. (BTW, the antique/thrift store does not factor into this).

If the poster does not have copyright, then you are free to do what you like. For Marilyn-era art, copyright had to be registered and renewed, and this may not have happened. But if the poster was for a movie, the movie studio likely owns and enforces the copyright.

If the poster has copyright but your usage is “transformative” (e.g. your added artistry significantly repurposes the poster), then your usage may qualify as “fair use.” This is subjective and only a court can make a final determination, and is less likely if you are making money from the image. But you could contact a local copyright attorney for an opinion.

To be safe, you should investigate the copyright status of the poster.

Andrew


Reply by Anonymous

December 22, 2014

I’m working on a documentary and I’d like to use footage from a newsreel that’s listed on archive.org as being in public domain. The clips are all of other celebrities commenting on Marilyn. Do you think that would be okay?


Reply by Andrew Hudson, PhotoSecrets

January 26, 2015

Hi,

Yes. If something is in the public domain then it is free to use by anyone for anything.

Andrew


Reply by Nicholas

December 17, 2014

Hi Andrew, Ive released an original pop tribute song to Marilyn in the genre of Elton Johns song tribute CANDLE IN THE WIND. I want to produce a music video to accompany it. Can a music video be done using some actual photos, movie footage and/or actual footage from her public life events, or would I have to use an impersonator to recreate and pay homage? Look forward to hearing back and beginning this final step of this record release tribute.

Please feel free to email me back reply to my email below.

Thank You


Reply by Andrew Hudson, PhotoSecrets

January 26, 2015

Hi Nicholas,

Although the estate of Marilyn lost publicity rights, the photographer of a photo of her still has copyright on the photo. So for each image you want to use, you should identify the copyright holder and ask them for permission. The same for movie footage — for “Some Like It Hot” you would probably need to contact the film studio, United Artists.

This is likely to be too much work (and possibly money) for your production. An easier approach is to use stock agencies (companies that license copyrighted works). For example, I just did a search for “Marilyn Monroe” on Shutterstock and over 1,000 images came up. For $249, you can license most of those (25 images a day for 30 days=750 images).

Good luck!

Andrew


Reply by Anonymous

October 7, 2014

Dear Andrew- Hi

For more than a year I have worked on a fantasy novel whose title and plot involves reincarnation of Marilyn Monroe in an imaginary setting, sometimes quoting her. Having read your article now, I’m really confused as whether my original idea and imagination has infringed the copy right laws and/or violated Monroe estate?? So, the whole literary work has to be discarded unless a loyalty paid and a legal permission gained if it is to be ever published? ... Or is it all Much Ado About Nothing?


Reply by Andrew Hudson, PhotoSecrets

October 8, 2014

Hi,

Thanks for your comment, I apologize if my article is unclear. I believe your idea is fine and you do not need permission to use an imaginary setting or short quotes.

The article is about the estate not having publicity rights. So you should not need to pay a royalty to, or get permission from, the estate.

Ideas and concepts -- such your story -- are not copyrightable, so you are free to tell your story (as long as you do not imply association/endorsement with an existing work or publisher). Long quotations can be subject to copyright. For example, using a significant amount of dialog from a movie, or text from another book, might need permission. But your project as described seems OK.

Best wishes,

Andrew


Reply by Someonefun

April 13, 2014

Since Monroe’s likeness is in public domain, then can a person draw a picture of Monroe that doesn’t copy a copyrighted photograph and legally sell that painting? Also, the Monroe estate has trademarked the name "Marilyn Monroe" for many products and services. Therefore, you couldn’t use the term "Marilyn Monroe" to describe your painting. How is that her likeness is public domain, but her name was allowed to be trademarked? Would describing the painting as "Monroe" violate the trademark? Thank you.


Reply by Andrew Hudson, PhotoSecrets

October 8, 2014

Hi:

1. Yes. If you are not copying a photo, you can create a likeness of Marilyn Monroe.

2. Likeness and trademark are different laws: one is state, the other is federal, and they protect different things. I don’t know if the estate has a trademark on “Marilyn Monroe” but, even if it does, that would only protect confusion as to the source of products or services.

3. You are clearly not trying to confuse a customer into thinking that the estate produced your painting, so trademark would not apply. So no, describing/titling your painting as “Monroe” would not violate such a trademark.

Best wishes,

Andrew


Reply by Candace Michelle

February 4, 2014

What if you’re a new business and want to use her image in a magazine? I have someone that made a dress inspired by Marilyn, would I be able to use the photo of Marilyn in the dress? The photographer from the movie, Gentlemen Prefer Blondes is deceased, would I still be able to use the image and give credit saying the name of the photographer, the movie it’s from and saying I don’t own the image?


Reply by Andrew Hudson, PhotoSecrets

March 20, 2014

MARILYN

Hi Candace,

Unfortunately for you, the photograph has copyright. Even though the photographer is deceased, the owner of the movie probably owns the copyright. Could you use a different image of Marilyn?

Andrew


Reply by

December 5, 2013

I’m thinking of painting her image as well as a quote on a flower pot and selling it, is this legal? As well as audrey Hepburn do you know about her?


Reply by Andrew Hudson, PhotoSecrets

January 6, 2014

Hi.

If someone (such as, according to this article, Marilyn Monroe) does not have publicity rights then you are free to use their image.

If you are copying a photo of Marilyn Monroe, then that photo may have copyright, in which case you would need permission from the photographer.

As for Audrey Hepburn, I believe her sons control her estate, so you would need permission from them if her image is protected by publicity rights.

Andrew


Reply by Elton Townend Jones

February 4, 2013

I am currently writing a play with the working title ’the Unremarkable Death of Marilyn Monroe’ and wondering if my use of that name leaves me open to legal action? Do you have any knowledge regarding this?

Many thanks.


Reply by Andrew Hudson, PhotoSecrets

March 5, 2013

PLAY TITLE

Hi Elton:

Even if the Monroe estate had publicity rights, those rights would apply to the likeness of Marilyn (her face, her signature), not (I think) to her mere name. So you would be OK as your use sounds like fair use. You could include a disclaimer in your script that states that your play is not endorsed by or affiliated with the Monroe estate.

If your play gets produced, it would be wise to have it vetted by a local lawyer.

Andrew


Add Your Comment

Comment:

Name:

Email (optional):

Submit your comment: