LEGAL TIPS

By Marshall M. Snyder

Attorney At Law

MARILYN MONROE ESTATE’S RIGHT OF PUBLICITY CLAIM IS DENIED

Marilyn Monroe, perhaps the most famous sex symbol of the 20th century, died on August 5, 1962. She left a Will, which did not expressly bequeath a right of publicity, containing the following residuary clause:

All the rest, residue and remainder of my estate, both real and personal of whatsoever nature and whatsoever situate of which I shall die seized or possessed or to which I shall be in any way entitled, or over which I shall possess any power of appointment by Will at the time of my death, including any lapsed legacies, I give, devise and bequeath as follows:

(a) To May Reis the sum of $40,000.00 or 25% of the total remainder of my estate, whichever shall be the lesser.

(b) To Dr. Marianne Kris 25% of the balance thereof, to be used by her as set forth in Article Fifth of this my Last Will and Testament.

(c) To Lee Strasberg the entire remaining balance.

Aaron Frosch was named Executor of the Will.

Lee Strasberg died in 1982 leaving his entire estate to his wife, Anna Strasberg. Aaron Frosch, Executor of the estate, died in 1989, at which time Anna Strasberg was named Administratrix. Ms. Strasberg then proceed to form Marilyn Monroe, LLC, to hold and manage the intellectual property assets and rights of the residuary estate.

The three principals of Shaw Family Enterprises, LLC, are the three children of Sam Shaw, a photographer who took many photographs of Marilyn Monroe. Comprising the “Shaw Collection” is a series of photographs of Marilyn Monroe, including many “canonical” Marilyn images. The copyrights to these photographs are owned by the Shaw children.

During September of 2006, a Target store in Indianapolis, Indiana began selling t-shirts which bore a picture of Marilyn Monroe and the inscription “Shaw Family Archives” on the inside neck label and a tag advising customers they could purchase licenses on a website for the use of Ms. Monroe’s picture, image and likeness on various commercial products which they, the customers, may wish to in turn sell.

Marilyn Monroe, LLC, filed suit against Shaw Family Archives in New York federal district court seeking to shut down the sale of these t-shirts at the Target store in Indianapolis. Marilyn Monroe, LLC, alleged the sale of t-shirts violated Indiana’s Right of Publicity Statute.

The decision before the court was whether there was any postmortem right of privacy or publicity in the name, likeness and image of Marilyn Monroe in the state of Indiana. The court noted that the Indiana statute was not passed by the legislature until 1994. At the time of her death in 1962, according to the court, Ms. Monroe did not have any postmortem right of publicity. As a result, any publicity rights she enjoyed during her lifetime were extinguished at her death by operation of law.

A Will passes all property the testator owns at death, including property acquired after the execution of the Will. It is settled law that a Will is construed as applying to and disposing of the estate in its condition at the time of death. A testator may dispose only of such property as is subject to his or her testamentary powers. In interpreting a Will, a court should view the Will in a manner which reveals the intent o the testator as disclosed by the language of the Will, and if possible, effectuate the intent.

During his or her lifetime, a testator cannot give or dispose of property which he or she does not own or has no interest no more so can a person make a postmortem distribution of property, which at the time of his or her death he or she does not own or in which he or she has no right. Thus, property acquired by a testator’s estate after his or her death may not pass under the residuary clause of the Will.

Any argument that the residuary clause of Ms. Monroe’s Will permitted her to devise a postmortem right of publicity must be doomed because the law in effect at the time of Ms. Monroe’s death did not recognize descendible postmortem publicity rights and did not allow for distribution under a Will of property not owned by her at the time of her death. A testator may dispose only of such as he or she is subject to his or her testamentary power.

Marilyn Monroe, LLC, argued that if the residuary clause did not grant to the residuary beneficiaries any rights to acquire this intellectual property, granting such rights to the intestate heirs of Marilyn Monroe (possibly another lawsuit against Shaw Family Archives for another day) would be unfair. The court found this argument bordering on the absurd.

In summation, the court held that the Indiana Right Of Publicity Statute granted no right of publicity to an individual to pass any rights of publicity via a Will. The court, therefore, ruled in favor of Shaw Family Archives.

Marshall M. Snyder is a Music Row attorney who can be reached at 615.673.7636 or by e-mail at .