Image rights bombshell for Marilyn Monroe: Shaw Family Archives v CMG Worldwide and Marilyn Monroe, LLC

A New York court has ruled that the “publicity rights” of Marilyn Monroe did not survive her death in 1962. The heirs of photographer Sam Shaw are therefore free to exploit the many iconic images of Monroe taken by their father.

Marilyn Monroe left the bulk of her estate to her “method” acting mentor Lee Strasberg. Lee Strasberg died in 1982 leaving his wife Anna Strasberg as the sole beneficiary under his will. Anna Strasberg administered the Monroe estate until 2001 when the estate was closed and its intellectual property assets were transferred to a Delaware company, Marilyn Monroe, LLC. Marilyn Monroe, LLC and its licensing company, CMG Worldwide, brought an action against the Shaw family to stop sales of a Marilyn Monroe T-shirt and the commercial licensing of Marilyn Monroe images through the Shaw family’s website  (http://www.samshaw.com).

Publicity rights in the USA are a decidedly unharmonised patchwork of different rights in different states, in much the same way as image rights in Europe.

Some states, such as California, recognise “post-mortem” publicity rights. In other states, such as New York, the rights only apply during a celebrity’s lifetime.

Where Marilyn Monroe was domiciled at the date of her death is disputed, but it had to be either California or New York. New York law does not recognize any common law right of publicity and limits its statutory publicity rights to living persons. California passed a post-mortem right of publicity statute, but only in 1984. At the time of Marilyn Monroe’s death in 1962, California only recognised a common law right of publicity, which could not be left to a person’s heirs.

Marilyn Monroe’s publicity rights were therefore automatically extinguished at her death and could not form part of her estate. According to this New York District Court decision, anyone may market images of Marilyn Monroe anywhere in the USA without reference to her heirs. The same must presumably apply to other celebrities who died domiciled in New York, or in California pre-1984, or in other states which at the time of their death did not provide for post-mortem publicity rights.

There has never been any equivalent in the UK to American publicity rights. Images of celebrities can generally be commercially exploited (even on T-shirts or – subject to the relevant industry Codes – in advertising) without reference to the celebrity. There are limited restrictions in the form of defamation law, registered trade marks and passing off (false endorsement), but false endorsement is obviously a difficult concept when a person is no longer alive and capable of endorsing products anyway.

Many continental European countries recognise rights similar to American publicity rights, before and often after the death of the celebrity. Whether Monroe’s heirs will be able to continue controlling exploitation of Monroe images in those countries, despite having no equivalent rights in the USA, remains to be seen.

Bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.