Marilyn Monroe's Persona Belongs To The Public; Estate Can't Retroactively Move Her To California

from the we-knew-she-belonged-to-the-public dept

Marilyn Monroe once said:
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.
But... that's not quite how the lawyers representing her estate felt about things. A few years ago, we wrote about how her estate had lost a legal fight trying to claim publicity rights in photos of Monroe. The case involved the question of publicity rights after death. As we recently discussed, some states allow publicity rights to live on after death, others do not. When Monroe died, the various states that could "claim" her (NY, California and Indiana) did not have laws that allowed publicity rights to live on after death. So that should have been the end of it.

But... California (due to pressure from plenty of folks in Hollywood) eventually changed its law to allow posthumous publicity rights. And so, Monroe's estate started suing. There was just one (major) problem. When Monroe had died, her estate had gone to great lengths to insist (no, really!) that she did not live in California, but in New York. Why? Because California had a massive estate tax, so the estate would have had to pay that if it was determined that she resided in California. They successfully convinced the world that she was a NY resident, and so they got out of paying California's estate tax.

However, when this issue of publicity rights showed up 40 years later, the estate suddenly changed its story, and wanted to insist that she really lived in California, but just for the purpose of publicity rights. As noted above, the courts didn't buy it -- in part due to the earlier arguments, but also because at the time of death it wouldn't have mattered, and the publicity rights had gone away. That resulted in the California state legislature passing a law (led by a state Senator, Sheila Kuehl, who had been a child actor, naturally) to say that dead celebrities could reclaim their publicity rights if they had died before posthumous publicity rights were allowed. Naturally, Senator Kuehl attached this important legal change to a bill that was originally about stem cell research. You see the connection.

Because of that law, the courts reviewed the case and still said: sorry, but Monroe did not live in California according to Monroe's own estate's earlier arguments. That ruling was appealed, and now the appeals court has rejected the estate's attempt to posthumously move Monroe once again, saying that the arguments made decades ago that she resided in New York bar her estate from trying to change those facts to suit their wallets today. The court more or less laughs at the argument that Monroe's lawyer was somehow mistaken or uninformed when originally claiming Monroe was a New York resident, and even suggests that such claims may not just be mistakes, but may be willful misrepresentations to the court:
Monroe LLC also suggests that it has always believed that Monroe died domiciled in California, and that Frosch was simply mistaken in his belief and representations because he did not have access to some documents that allegedly contradict the materials and declarations he relied upon. This assertion by Monroe LLC is dubious, at best. Frosch had contemporaneous access to people knowledgeable about Monroe’s intentions, including Ralph L. Roberts, her close friend and confidant and reportedly the last person to see her alive. To the extent that there was any debate, Frosch represented, with significant evidentiary support, that Monroe’s intention was to remain domiciled in New York, though she temporarily relocated to California for a movie shoot. Another possibility, for which we have insufficient evidence, is that Monroe LLC’s present position on Monroe’s domicile is a knowing misrepresentation, or tantamount to a fraud on the court. In light of this irreconcilable conflict between diametrically opposed representations about Monroe’s intended domicile, the district court’s determination that Frosch intentionally misled the courts is supported by “inferences that may be drawn from the facts in the record” and is therefore not an abuse of discretion.
The court is pretty clear, and at times harsh. Not only did it use the quote above to note that her persona now is, in fact, part of the public, but it also used another quote of hers to describe her estate's questionable claims in the case:
This is a textbook case for applying judicial estoppel. 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. Marilyn Monroe is often quoted as saying, “If you’re going to be two-faced, at least make one of them pretty." There is nothing pretty in Monroe LLC’s about-face on the issue of domicile. Monroe LLC is judicially estopped from taking the litigation position that Monroe died domiciled in California. Our conclusion in this regard is guided by the need to preserve the dignity of judicial proceedings that have taken place over the last forty years and to discourage litigants from “playing fast and loose with the courts.”
Amazingly, even after this loss, her estate is still insisting that it retains control over her likeness. According to Reuters:
The star's estate, however, said it still retained exclusive rights to the film star's likeness under federal law.
Except, there is no federal publicity rights law. So now they appear to just be making stuff up. I imagine that won't play very well in court either.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 12:15pm

    Judicial estoppel for the win.

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 12:20pm

    "Except, there is no federal publicity rights law."

    Monroe LLC: " yet."

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    Argonel (profile), Aug 31st, 2012 @ 12:24pm

    I think they should allow them the publicity rights claim. Then hit them with a judgement for 40 years of back taxes on the publicity rights as applicable tax fraud. I also thick the estates current representation should be held personally and professionally liable for not paying appropriate taxes based on the publicity rights that didn't actually exist for most of the 40 years. If the state of California can collect it might take a small bite out of the state deficit.

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 12:35pm

    Marilyn Monroe

    Who?

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    GMacGuffin (profile), Aug 31st, 2012 @ 12:46pm

    Textbook Judicial Estoppel

    Dude! This is, like, the Best ... Case ... Ever ... for instilling in law students' minds the somewhat nebulous concept of judicial estoppel. Who could forget the lesson learned ...

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    Gwiz (profile), Aug 31st, 2012 @ 12:47pm

    Re:

    Marilyn Monroe

    Who?



    Mr. Coffee's ex-wife.

     

    reply to this | link to this | view in thread ]

  7.  
    icon
    John Fenderson (profile), Aug 31st, 2012 @ 12:51pm

    Re:

    I had this thought as well. But I think the "you made your bed now lie in it" ruling is the better one all things considered.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    That One Guy (profile), Aug 31st, 2012 @ 12:51pm

    Re:

    Oh I am so behind this plan, let them get what they want(or what they think they want), and then fine them into oblivion and watch them try and scramble to stay out of jail for 40 years of tax evasion/fraud. Would be a perfect lesson for those that try and game the system, and what's more, the estate's own argument is basically making the case against them.

    If they're trying to claim now that she always 'lived' there, then that would mean that despite the fact that she has 'lived' in NY for all those years they still should have been paying all the relevant taxes, and didn't. Not only that, but they lied about why they didn't have to pay the taxes. I'm fairly sure at least one of those things is a jailable offense

     

    reply to this | link to this | view in thread ]

  9.  
    icon
    pbarker (profile), Aug 31st, 2012 @ 1:11pm

    Re: Re:

    Mr Coffee...


    Who?

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Jan Keys, Aug 31st, 2012 @ 1:15pm

    Re: Re:

    Mr. Coffee's ex-wife.

    Dorothy Arnold?

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 1:23pm

    Re: Re: Re:

    Who?

    Sun Beam. A rather vacuous Jewish boy who was born in China.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Juan Valdez, Aug 31st, 2012 @ 1:26pm

    Re:

    Estop that!

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    Ed C., Aug 31st, 2012 @ 2:31pm

    Re: Re:

    Yep, I would have given them the choice: either go to jail for perjury, or go to jail even longer for tax fraud and have the entire estate declared insolvent to pay 40 years of back taxes and fees, with interest!

     

    reply to this | link to this | view in thread ]

  14.  
    identicon
    DogBreath, Aug 31st, 2012 @ 3:17pm

    Logic and justice wins again

    If this case had made it through, I bet next up would be some other "LLC" saying that their dead clients now public domain works weren't meant to be published and copyrighted before the Sonny Bono Copyright Term Extension Act went into effect.

    "It was a mistake your honor. So if you could just, modify my dead clients public domain works with a new copyright date so I could make people pay, that would be great."

     

    reply to this | link to this | view in thread ]

  15.  
    identicon
    DogBreath, Aug 31st, 2012 @ 3:20pm

    Re:

    Imaginary laws for imaginary property. Seems logical.

     

    reply to this | link to this | view in thread ]

  16.  
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    Vidiot (profile), Aug 31st, 2012 @ 3:58pm

    Euphemistically speaking

    My wife's grandmother used to say things like, "You can have that necklace after I move to California," although she was referring less to a cross-country move and more cross-dimension. Marilyn, of course, has already moved to California, where, no doubt, she's met my wife's grandmother.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 4:01pm

    Seems Hollywood isn't happy leeching the life from living artists, now they've begun raising the dead ones too to suck money from. Talk about no respect.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 5:41pm

    Re: Re:

    you mean joltin' joe

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 5:41pm

    Re: Re: Re:

    who was just a mr. coffee paid shill

     

    reply to this | link to this | view in thread ]

  20.  
    identicon
    Anonymous Coward, Aug 31st, 2012 @ 5:44pm

    Re:

    I've said it once, I'll probably say it a thousand times; the extinction of this gawdawful species we have tagged human can not come soon enough to save this planet.

     

    reply to this | link to this | view in thread ]

  21.  
    icon
    G Thompson (profile), Aug 31st, 2012 @ 11:06pm

    Re: Textbook Judicial Estoppel

    Absolutely, and I think this should now be placed in the Books..

    Think about it: You have absolute estoppel, an Awesome bench slapping (actually I can see at least two just in the cited section above), the stupidity of retrospective laws, and Marilyn!!!

    What student wont remember that forever..

    Oh and you could bring in interesting questions like: "Could the estate now claim Norma Jean was a resident of CA whereas the pseudonym of Marylin was only in NY?" Yes Yes I'm an evil test maker;)

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    louieconnor, Sep 1st, 2012 @ 12:35am

    Dude! This is, like, the Best ... Case ... Ever ... for instilling in law students' minds the somewhat nebulous concept of judicial estoppel. Who could forget the lesson learned ...casinos paypal

     

    reply to this | link to this | view in thread ]

  23.  
    icon
    GMacGuffin (profile), Sep 1st, 2012 @ 7:57am

    Re: Re: Textbook Judicial Estoppel

    OK G, I won't try make a wager, and I no longer know any law professors, but it's published 9th Cir. -- my hood, so I'll keep an eye out to see if it makes it into the textbooks.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Dave Nelson, Sep 1st, 2012 @ 10:53am

    Re: Textbook Judicial Estoppel

    Aggreed, However, the case is really much simpler: criminal fraud, and should be procecuted as such, by both New York and California.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    Anonymous Coward, Sep 1st, 2012 @ 1:33pm

    Re:

    Ohhh, a spambot that can use words from the page!

    Tell me more about your foul spam based magics.

    /wonka

     

    reply to this | link to this | view in thread ]


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