June 11, 2012 12:40pm PT by Eriq Gardner
Marilyn Monroe Estate Threatens Legal Action Over Hologram (Exclusive)
A concert featuring a holographic Marilyn Monroe is under legal threat by the deceased icon's estate.
Digicon Media holds a copyright on "Virtual Marilyn" and plans to feature the projected blond bombshell singing and interacting alongside live music stars. But months of correspondence obtained by The Hollywood Reporter indicates that the Monroe estate is closely watching Digicon's activities, and if the show goes on, there could be a big lawsuit.
The letters between Digicon and Paul Bost, an attorney at Sheppard Mullin who is representing the Monroe estate, provides an inside look at a developing legal controversy. The holographic Tupac Shakur performance at Coachella proved that digital resurrection of deceased celebrities could be an emerging trend, but the rights needed to pull off the spectacle are far from clear. The "Virtual Marilyn" concert is said to use the same technology as the Tupac one (observers debate whether it is technically a hologram).
First, here's a look at "Virtual Marilyn" performing "Bye Bye Baby" from Gentleman Prefer Blondes.
In December, Digicon received a cease-and-desist letter from the estate that claimed that "Virtual Marilyn" infringed upon its intellectual property and demanded a stop to the use of any marks, names, logos and designs that were based upon the identity and persona of Marilyn Monroe.
The digital studio insists that it has done something unprecedented—copyrighted a human persona—and that the statute of limitations has passed on any possible legal objection since the estate knew about what has been in development for more than fifteen years. The digital persona is also said to be completely distinguishable from the woman who died in 1962 of an apparent drug overdose.
Here is how the company first responded to the Estate's legal warning:
The above letter brought a response by Bost, who refuted the possibility that the statute of limitations had passed. In reference to the Google videos of "Virtual Marilyn," he wrote that they all appear to date from the mid-1990s, and that if "Virtual Marilyn" had some life back then, it was "limited and short-lived" and not very successful. He says there is "no evidence" that the Monroe estate was aware of the activity, and he tells a Digicon official, "You appear to want to resurrect Virtual Marilyn after 15+ years of non-use."
Bost reiterates the demand to stop exploiting Monroe's persona.
Digicon responded with a letter in January that congratulated Sheppard Mullin in getting involved with the Monroe estate, saying that the two previous law firms representing it (Gibson Dunn and Loeb and Loeb) engaged in "shenanigans in hiding and misrepresenting evidence of Ms. Monroe's true domicile in New York at the date of her death."
The reference is to court rulings in cases where Monroe's estate sought to assert violations of Monroe's personality rights against photographers who licensed for such products as T-shirts. The cases were unsuccessful because it was determined that Monroe lived in New York at the time of her death and the state doesn't have generous publicity rights for celebrities. "Monroe could not devise by will a property right she did not own at the time of her death in 1962," a judge ruled.
The January letter by Digicon to the attorney for the Monroe estate continues, "The Estate is now Judicially Stopped from claiming ANY Privacy, Publicity or related rights to name, image or likeness obtained through testamentary inheritance in New York."
But that doesn't end the dispute.
In February, Bost responded and indicates that a lawsuit likely would be premised on alleged trademark violations for causing consumer confusion and implying an endorsement or or association with Marilyn Monroe.
"Ms. Monroe was famously known as a model and actress during her lifetime," he writes. "You are wholly re-creating Ms. Monroe to serve as a model and actress."
Here's the full letter.
Comments by both parties in reaction to this story on the next page.
The Marilyn Monroe estate gave THR a statement:
"The Estate of Marilyn Monroe is the sole and exclusive holder of Marilyn Monroe's personality and identity rights and rights in the MARILYN MONROE trademark, and the unauthorized use of Ms. Monroe's identity and persona, such as that contemplated by Digicon Media, violates and infringes the Estate's rights in derogation of several Federal and State laws.
New and emerging digital and holographic technologies present the Estate and Authentic Brands Group with a host of intriguing opportunities befitting an icon of Ms. Monroe's caliber.
To that end, the Estate and Authentic Brands Group look forward to teaming with best-in-class partners in these fields to bring Ms. Monroe's fans top-of-the-line, exciting entertainment experiences. The Estate is unfamiliar with Digicon Media's capabilities as a developer and producer of digital and holographic technology, and is unaware of any successful attempt by Digicon to organize any meaningful exploitation of the crudely animated character that it claims to be a representation of Ms. Monroe and which it allegedly created in the mid-1990s. The Estate and Authentic Brands believe that the technological advancements made since that decade allow talented developers to create superior virtual characters, akin to the virtual Marilyn Monroe character portrayed in Dior's popular ad campaign for its J'Adore perfume.
The Estate's cooperation is required if anyone intends to market and exploit Ms. Monroe's identity and persona through a "live" concert or otherwise, and Digicon has not secured any such cooperation from the Estate to date."
"This is the first known example of the US Copyright Office's registration of a copyright on an original character adopting the persona of a deceased iconic personality. VM2-Virtual Marilyn, with the adopted persona of Marilyn Monroe, became a copyright protected character like Batman, SuperMan, Mickey Mouse.
Comments by the Marilyn Monroe Estate in an article in a Hollywood magazine regarding its purported rights to the persona of the deceased actress, Marilyn Monroe, contradict the rulings of two federal judges in 2008, who sanctioned and fined the Estate and its prominent counsel, for deceiving the court regarding these rights which they knew could not have been inherited based on the law of the domicile where she died.
Yet for more than 40 years the Estate demanded licenses for publicity rights to Marilyn Monroe's name and likeness it knew it never inherited...and the court said that the Monroe Estate and their attorneys engaged in unacceptable shenanigans..for misconduct in failing to disclose that the Estate knew it had no such rights yet continued to assert them to the court anyway.
This copyrighted computer generated character, VM2-Virtual Marilyn will be launched in a globally webcast live concert now in development for the end of the year or the first quarter of 2013.We are partnering with two non-profit charitable organizations who will be the beneficiaries of 70% of the net proceeds."