Marilyn Monroe is said to have had $3.50 in her apartment when she died. Yet she will make more money this year than all but a handful of Hollywood stars. How is she worth more dead than alive? Who gets that money? Who doesn’t (but should)? Welcome to The Marilyn Wars.
Marilyn Monroe has been dead for 48 years. Do you care? In some years the dead Marilyn earned over $7 million on sales of over $60 million in merchandise bearing her name or image. Still don’t care? Well, I know who does care. A unique group of sharp business people, creative lawyers, nostalgic purveyors of porn, scheming collectors, paranoid political conspiracy theorists, fraudsters and infringers, fans and obsessed idolaters, and loyal devotees who seek to prolong their candle in the wind. These are the soldiers in The Marilyn Wars. They are engaged in a struggle of constant calumny, lawsuits, claims of fraud and theft, and even threats of duct-and abduction.
The main battlegrounds are the federal courts and state legislatures, and the principal combatants are the estates of various artists claiming conflicting intellectual property rights in Marilyn, and the publishers and photographers who took the iconic photographs reproduced on so many of the pieces of merchandise sold under her name. The rest of the colorful players (who are worthy of their own article) are cheerleaders of varying stripes. Over the last few years, The Marilyn Wars changed the entire playing field for intellectual property rights known as “rights to publicity,” sparking precedent-setting court cases from coast to coast who owns a piece of what or whom.
And all over symbol who would have recently turned 83. A product of national obsession and hard work behind the scenes, Marilyn’s estate—in tandem with its licensing agents and others—has fought to ensure that her memory lives on, and productively so. Marilyn’s name or image has appeared on dozens of products and advertisements, from a “Marilyn” perfume line in Europe to advertising campaigns with Dom Perignon, Absolut and General Motors. There are even Marilyn-themed casino slot machines and a line of pet clothing that includes a hot-pink dog dress with the slogan, “Diamonds are a Dog’s Best Friend.” (Seriously.) Would you reach for a bottle of water bearing the iconic image of Marilyn stretched out on a red velvet blanket over one of Fuji or Evian? Gauging from their labels, the makers of Star H2O must think so. So who owns Marilyn, and who or what has the right to the proceeds from her legacy? After all, that’s what The Marilyn Wars are really all about.
In her will, Marilyn left the residual of her estate to her acting teacher, Lee Strasberg of New York. Some years after Marilyn died, Strasberg married named Anna Mizrahi, who by many accounts never met Monroe. After Lee died, Anna connected with Mark Roelser, who had founded a company now called CMG Worldwide, headquartered in Indianapolis. This location is important because Roesler had lobbied the Indiana legislature to pass a law giving rights to publicity to the estates of deceased people— despite the fact that they were already dead when the law was passed, thus coining the term, “posthumous rights to publicity.” This allowed CMG to capitalize on the rights of publicity licensed to his company by the heirs of deceased celebrities. CMG began enforcing these rights around the country, encouraging those selling merchandise using those names to pay a licensing fee for the privilege. Over time, this became big business.
Today CMG represents scores of “living legends” ranging from Monroe to Malcolm X. Some American icons became, in effect, worth more dead than alive. Who in 1947—the year when Marilyn was crowned Miss California Artichoke Queen—would have guessed that over $30 million would have been collected on Marilyn merchandise and advertising through the end of last year? Among those requested to pay fees for the use of Monroe’s image have been the heirs to photographers who themselves had taken some of the iconic photographs of Marilyn that the estate was exploiting. One such instance involves the famous publicity still from the film The Seven Year Itch where Marilyn is standing above a New York City subway grate with her dress billowing up around her. Issues of copyright and right to publicity are now center stage as CMG and other combatants in The Marilyn Wars have staked competing claims over who or what has the right to capitalize on Marilyn’s robust brand.
While the CMG-friendly courts of Indiana have enforced posthumous rights to publicity, the courts and statutes of other states such as New York and California have not necessarily followed suit. Importantly, New York has no laws granting posthumous rights of publicity. California, another state in which Marilyn maintained a home, did have such a law passed, but only in 1984, some 22 years after Monroe’s death. However questions were raised about its retroactive effect. In 2007, a court ruled that because there was no such right in New York (and that California’s law had no retroactive effect), no such right existed when Marilyn died in 1962 and, therefore, it was impossible for her to have conveyed that right in her will. You can’t convey something that you don ’t own, and if it didn’t exist when you died, you can’t have owned it. While these litigations and appeals are ongoing, CMG continues to own numerous registered trademarks relating to Marilyn Monroe. But others are jumping on the Marilyn bandwagon, such as her photographers and others claiming interests in her image.
The Marilyn Wars, in other words, are just heating up (and one can only imagine the fires soon to rage regarding the Estate of Michael Jackson). Their outcome impacts hundreds of millions of dollars and has implications to the estates of scores of famous people and their future estates. It will take some years before the stardust settles, but in the meantime, Marilyn keeps smiling and profiting a great many well beyond her few happy years. Not bad for a “candle in the wind.”
Editor’s Note: Neil Patrick Parent is a partner in the Manhattan-based law firm Reavis Parent Lehrer LLP (www.rpl-law.com ) with affiliates in Los Angeles and San Francisco. The firm has a practice group concentrating in intellectual property and entertainment law. This article is not intended to convey legal advice and individuals seeking information concerning the above should seek appropriate legal counsel.