Sunday, May 06, 2007

Something had to give

A potentially huge decision in the Southern District of New York late last week: Judge Colleen McMahon ruled that Marilyn Monroe's right of publicity -- that is, the right to control the use of her name, image, or likeness on merchandise -- did not survive her death in 1962. The AP story is here. The opinion is here. The simple logic of the decision was: since (1) "only property actually owned by a testator at the time of her death can be devised by will" and (2) there was no relevant jurisdiction that "recognized descendible postmortem publicity rights at the time of Ms. Monroe's death," therefore (3) "she could not transfer any such rights through her will." (Or, as Marty Schwimmer puts it: "a post-mortem right cannot be created after death.")

Bill Zale, editor of CCH Advertising Law Guide, has this summary:

"To this day, New York law ... limits its statutory publicity rights to living persons, the court said. California passed a postmortem right of publicity statute in 1984 .... Before that, a common law right of publicity existed in California, but it was not freely transferable or descendible, according to the court. Indiana first recognized a descendible, postmortem right of publicity in 1994, when it passed the Right of Publicity Act .... Thus, any publicity rights that Monroe enjoyed during her lifetime were extinguished at her death by operation of law, the court concluded."