I interrupt my running problem to ponder a recent decision in the Ninth Circuit, involving Marilyn Monroe.
Marilyn Monroe, a world icon, died belonging to the Public, this was decided by the Ninth Circuit Court of Appeals on August 27, 2012. The underlying case involved a consolidated action between Marilyn Monroe, LLC and Milton Green and certain other holders of copyrights for photographs of Marilyn Monroe.
The California statutory right to publicity was created in 1984, two years after the last of Marilyn Monroe’s remaindermen heirs deceased, and it codified a descendible, posthumous right of publicity. Prior to that, the right of publicity extinguished at the time of death, as is still the case in New York.
At the time of Monroe’s death her estate claimed she was really a New York resident even though she purchased and moved into a home in Brentwood, California in 1962, where she was found dead on August 5, 1962 after being fired from 20th Century Fox Studios in June of 1962 for repeated absences and tardiness during the filming of Something’s Got To Give. Monroe’s attorney at the time convinced the Los Angeles Superior Court, the Franchise Tax Board, the Inheritance Tax Appraiser, the State Board of Equalization and the state of New York of Monroe’s New York residence, and her estate avoided payment of California estate taxes. In 1994, Nancy Miracle sued the executor of Marilyn Monroe’s estate Hawaii claiming she was the daughter of Marilyn Monroe seeking 50% of Monroe’s estate as a pretermitted heir under California law. Under the California law in effect at Monroe’s death, pretermitted children could bring claims even if [, like Miracle,] they were born prior to execution of a will, while under the relevant New York law, claims could be brought only by ‘after-born children.’ The case was dismissed on the basis that New York law applied, giving no rights to the ‘after-born’ Miracle, because Marilyn Monroe died a resident of New York, and the same result was had when Miracle filed a similar action in the state of New York.
On May 14, 2007, on a summary judgment motion, the district court ruled in favor of Milton Green, concluding that because Marilyn Monroe, LLC was not entitled to exercise a right of publicity, it lacked standing to assert those rights against Milton Greene. At that time, the right of publicity statute did not have a retroactive effect, and the court reasoned that no right of publicity could have passed applying either California or New York law. In direct response to the summary judgment ruling, a bill was introduced to the senate and was enacted in September 2007, and it, in effect, amended the California statute to deem that the right of publicity existed at the time of death of any deceased personality that died prior to 1.1.1985, and could transfer through the residual clause of any deceased personality. Based on the amendment, Marilyn Monroe, LLC sought reconsideration of the motion for summary judgment. Reconsideration was granted, and the court ruled that had Marilyn Monroe died a California resident, the right of publicity would have passed through the residuary of her will, but, reasoning that judicial estoppel precluded Monroe from advocating that she died a resident of California, the court again, ruled in favor of Milton Green on the basis of Marilyn Monroe’s New York residency at the time of her death.
The Ninth Circuit was also not swayed, after much argument by Marilyn Monroe, LLC, that Monroe was not really a California resident when she died, the Court ruled that judicial estoppel precluding such a finding. And so, fifty years after her death, the Ninth Circuit reached a ruling that determined that Marilyn Monroe died with no posthumous right of publicity, and her heirs will not benefit from their lobbying efforts to create that right in California. I return to my running problem with the idea that unless you want to belong to the Public, if you’re going to die famous, don’t reside in New York.
“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, My Story 123-24 (Cooper Square Press 2000).
I am a runner and trademark and copyright attorney. I volunteer with my best friend and running partner, Monty (a Maltese) at Huntington Memorial Hospital’s Pet Assisted Therapy program and am a co-chair of the Technology Section of the Pasadena Bar Association and a board member of the San Gabriel Valley Bar Association.