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Entertainment Law: Even death won’t do us apart

BananaIP Counsels > Intellectual Property  > Entertainment Law: Even death won’t do us apart

Entertainment Law: Even death won’t do us apart

There are celebrities, and then there are icons. And one name that probably tops the list of icons is Marilyn Monroe. The blonde actress never ceased to be out of the headlines when she was alive, and even when she is no more, her estate is fighting tooth and nail to keep her memory alive. However, the route taken to do so is not particularly agreeable, to say the least.

Monroe’s estate has been fiercely litigious and has gained notoriety for suing anyone who is looking to capitalize on her fame. It should therefore come as no surprise that Monroe has continuously been featured on the Forbes list of top earning dead celebrities ($17 million in 2015 list!). Sure, Michael Jackson, Elvis Presley and Bob Marley are ahead of Monroe as far as income goes, but 17 million dollars is a staggering amount, considering the estate has no legitimate claim over the dead actress’s publicity rights. Yes, that’s right, back in 2012 the Ninth Circuit Court of Appeals ruled that “her heirs can’t take advantage of the state’s generous laws allowing individuals to hold rights on their name, image, and likeness.”  When Marilyn Monroe died, she had residences in both New York and California. Her heirs had the option of registering her as a Californian citizen, but they went with New York as the preferred choice, because making her a Californian citizen would have meant paying hefty estate taxes. Hence the Court ruled that “Monroe LLC can’t claim in court that the legendary actress was living in California at the time of her death” making them unable to take advantage of California’s laws which allowed the heirs of the dead celebrities to hold rights on the deceased person’s likeness.

But this defeat was not the last we would see of the Monroe estate. In the same year (2012) AVELA, a movie nostalgia merchandising company went after Monroe’s estate for ‘interfering with its licensing activity’. If you are wondering where you have heard the name ‘AVELA’, it’s the same company that lost the lawsuit against Bob Marley’s heirs, for selling t-shirts with his photographs. Coming back to the altercation between AVELA and the Monroe estate, AVELA in the suit, argued that the estate had no right to send them a cease and desist notice to stop any products or services infringing from Monroe’s publicity rights. However, the estate brought counterclaims and in September this year, the New York District Court allowed AVELA to be sued for infringement of Marilyn Monroe trademarks. Highlighting the difference between publicity rights and trademarks, District Judge Katherine Polk Failla wrote, “The key distinction between a right of publicity and a false endorsement claim is that the latter requires a showing of consumer confusion.”

Now, in the span of only a couple of months, the situation has changed again. This time it’s another merchandising company targeting the estate. X One X Movie Archives, which is associated with AVELA, has brought its own counterclaims, seeking to cancel the impugned trademarks (e.g. “Marilyn Monroe”) on the basis that they “lack distinctiveness, only identify a deceased person rather than the source or origin of any product, and are purely functional in that they are used to describe a famous person in the public domain.”

The Court document details how the estate came about. When Monroe died in 1962 she bequeathed $25,000 to her personal secretary and divided the rest of her assets between her psychiatrist Dr. Marianne Kris and her acting coach Lee Strasburg. After they died, the estate went to Strasburg’s widow Anna and Aaron Frosch. Fast-forward to 2010, ABG established itself as the Estate of Marilyn Monroe LLC, after purchasing Marilyn Monroe LLC and the registered trademarks.

X One has pleaded not to rule in favor of the estate as it would give monopoly to ABG Parties to unlawfully restrain any use of Marilyn Monroe’s image, likeness or name in commerce and deny the public, the right to make commercial use of public domain images.

Authored by Anchita Sharma

Sources 1, 2, 3,4,5

Image Source/ attribution here, this image is in public domain.

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