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No Right of Publicity for Marilyn Monroe

Sam Shaw was a photographer whose photographs of Marilyn Monroe have come to be known worldwide. The Shaw Family Archive makes these photos available for purchase on its website.

CMG Worldwide, Inc. is a licensing company that administers the rights to use of celebrity likenesses, and which has contracted with Monroe's estate regarding her likeness.

CMG sued Shaw Family Archives and Bradford Licensing Inc. in 2005 in Indiana alleging violations of the superstar's right of publicity by using her name, image and likeness for commercial purposes without consent. The suit was brought under Indiana's broad 1994 Right of Publicity Act, which recognizes a descendible postmortem right of publicity. Shaw's family and several others then filed a declaratory relief action over the dispute in New York federal court when Target stores began selling T-shirts bearing one of the Shaw photos of Marilyn.

The Estate's claims arise because the residuary clause in Monroe's will covered all property “to which (she) shall be in any way entitled.”

The question before the Courts was whether, at the time of her death, Marilyn was entitled to a property right in her so-called “Right of Publicity”. The Indiana case was ultimately consolidated with the New York case and U.S. District Court Judge Colleen McMahon found that at the time of her death in 1962, Monroe did not have any postmortem rights of publicity under the law of any relevant state, including California, where she died, and New York, which was purportedly her legal residence

New York limits the right of publicity to living persons, while California's right of publicity law, which does descend to heirs after death, did not go into effect until 1984.

The ruling permits the Shaw estate to continue selling and licensing its photos without further permission from the estate and CMG.

The case may also have broader ramifications, as owners of materials containing likenesses of other now-deceased celebrities can (at least in the 2nd Circuit, engage in similar sales and licensing transactions.

The full Court opinion can be found here.

My friend and colleague Christine Valada (a lawyer noted for her representation of photographers) wrote to tell me:

There's a rush on in the New York legislature to overturn this ruling bymaking a retroactive law regarding these rights. Not a happy situation forphotographers (who are writing letters against it), especially since my readon the legislation gives no weight to releases which may have been signed bythe photographer's subject.

So, we'll keep watching.

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