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Washington Mimics California's Response to Marilyn Monroe Publicity Decision

Speaking of rights of publicity (see April 6 post here), the New York Times yesterday ran a piece on Marilyn Monroe’s right of publicity, or lack thereof. Similar to the Western District’s and Ninth Circuit’s decisions involving the Estate of Jimi Hendrix, the Central District of California found Ms. Monroe either was a resident of New York or California at the time she died. (In Mr. Hendrix’s case, the Western District and Ninth Circuit found he was a resident of New York.) Either way, the court found, Ms. Monroe’s right of publicity did not descend to her heirs because the statutes in those states did not recognize that rights of publicity survived a person’s death.

In response, the California legislature amended its statute to recognize the descendability of such a right. Sound familiar? This is similar to what the Washington legislature did last month in response to findings involving the Hendrix Estate. 

Therefore, the Central District of California reconsidered its decision. It remains to be seen whether any such decisions will be reconsidered in cases involving Mr. Hendrix. To the extent any remain open, however, I’m sure they will.

Despite its reconsideration, on March 17, the court came to the same result. It found that because the Monroe Estate previously had argued that Ms. Monroe was a domiciliary of New York for tax purposes, it was judicially estopped from arguing that she was a domiciliary of California for right of publicity purposes. Therefore, Ms. Monroe’s heirs had no right of publicity to inherit.

The New York Times piece notes: “The decision makes it possible to reproduce Monroe’s image without having to pay licensing fees worth millions of dollars to her estate.”

It states the Monroe Estate plans to appeal. Given the amount of money at stake, I’d be surprised if it didn’t.

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