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Each year Forbes magazine publishes its list of the "Top-Earning Dead Celebrities." In 2012, the estates of the thirteen celebrities on the list, including Elizabeth Taylor, Michael Jackson and Marilyn Monroe, raked in a total of $535.5 million, with Elizabeth Taylor's estate earning approximately $210 million claiming the top spot. Needless to say, for some, even death can be a lucrative business.
In 2012, Marilyn Monroe's estate earned $10 million — fifty years after her death. The estate, however, recently lost the ability to assert Marilyn Monroe's right of publicity, meaning that her estate can no longer charge others to use her image. This change in circumstances will undoubtedly affect the overall value of the estate.
In the most basic terms, the right of publicity refers to an individual's right to control the commercial use of her name, image or likeness. The right of publicity varies from state to state. Nineteen states currently recognize a statutory right of publicity, while twenty-eight more recognize such a right under common law.
The legal battle over Marilyn Monroe's right of publicity began in 2005, when Marilyn Monroe LLC ("Monroe LLC") filed suit against two photographers, Milton Greene Archives, Inc. and Tom Kelley Studios, Inc. ("Milton Greene"), in Indiana claiming ownership of Marilyn Monroe's right of publicity and alleging that Milton Greene had violated those rights by using Monroe's image and likeness without its permission. Monroe LLC was formed in 2001 by Anna Strasberg, wife of Lee Strasberg, Marilyn Monroe's acting coach who died in 1982. Mr. Strasberg was named as the residual beneficiary under Marilyn Monroe's will. Milton Greene responded by filing suit in California seeking a declaration that Monroe LLC did not own Marilyn Monroe's right of publicity. The two cases were consolidated in California.
The district court entered summary judgment in favor of Milton Greene, ruling that at the time of Marilyn Monroe's death in 1962, there was no "descendible, posthumous right of publicity," and therefore Marilyn Monroe "had no testamentary capacity to devise, through the residual clause of her will, statutory rights of publicity" to Mr. Strasberg or anyone else. Just over a month later, the California legislature amended its laws to provide that a statutory right of publicity was deemed to have existed when Marilyn Monroe died, and that her right of publicity was freely transferable upon her death either by an express testamentary transfer or through the residual clause in a will. Meanwhile, across the country, the New York legislature had rejected Monroe LLC's efforts to amend its laws to enact similar legislation to establish a posthumous right of publicity.
Monroe LLC moved for reconsideration of the district court's decision based on the new California law. The district court granted reconsideration and ruled that if California law applied, Marilyn Monroe's right of publicity passed to Monroe LLC through the residual clause in her will. If, however, Marilyn Monroe was found to have been domiciled in New York when she died, such that New York law applied to her estate, her right of publicity would have expired at the time of her death.
After careful examination of the record, including more than forty years of probate proceedings during which the executors of Marilyn Monroe's estate repeatedly represented that Marilyn Monroe was domiciled in New York when she died, the district court again ruled in Milton Greene's favor. This time the district court concluded that Monroe LLC was judicially estopped from arguing that Marilyn Monroe was domiciled in California at the time of her death in order to take advantage of the recent change in the law providing a posthumous right of publicity. The California appellate court affirmed the district court's ruling, expressing its distaste for Monroe LLC's legal maneuvering: "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."
Eerily, Marilyn Monroe herself seemingly predicted the outcome of this case, once saying, "I know 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."
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