June 27, 2012 8:54am PT by Eriq Gardner
Movie Nostalgia Company Sues Marilyn Monroe Estate for Interfering with Business (Exclusive)
AVELA, a company that specializes in nostalgia merchandise, has filed a lawsuit in New York, alleging that the Marilyn Monroe estate is interfering with its licensing activity.
The estate of Marilyn Monroe aggressively protects the image and likeness of the deceased blonde starlet, but has suffered court losses over the years that have put into serious doubt whether Monroe's publicity rights survived her death. Despite judgments that ruled that Monroe couldn't devise by will a property right she did not own at the time of her death in 1962, the estate has continued to send out cease-and-desist letters, including one to the makers of a "Virtual Marilyn" Monroe hologram.
AVELA says that it has also received a cease-and-desist and is now suing to punish the estate for its legal aggressiveness.
The plaintiff licenses images of old Hollywood stars to a company named Silver Buffalo, which appears to manufacture merchandise such as this Marilyn Monroe ceramic mug...
Last June, AVELA says it got a letter from the estate that demanded it stop licensing any products or services infringing Monroe's publicity rights. AVELA also says that Silver Buffalo got one too from Bioworld Merchandising that claimed to be the exclusive licensee of Monroe's publicity rights.
In the lawsuit just filed by AVELA, the company says that both a California federal judge and a New York federal judge previously determined that Monroe's estate was estopped from claiming an enforceable post mortem right of publicity.
AVELA, represented by attorney Erach Screwvala, now alleges that the estate is tortiously interfering with its contracts. It's demanding actual and punitive damages because the estate has already been given judicial notice of the standing of its publicity rights.
The Monroe estate hasn't yet responded to a request for comment.
Monroe's estate has had difficultly on the publicity rights front because it has been determined that she was domiciled in New York at the time of her death. Publicity rights vary by state, and New York doesn't have the strongest personality right protections.
Interestingly, this new claim comes just as it was confirmed that Albert Einstein, one of Monroe's acquaintances in life, has a post mortem right of publicity. Einstein's rights are controlled by The Hebrew University of Jerusalem, which is suing General Motors for using Einstein's image in an advertisement in People Magazine's "Sexiest Man Alive" issue. The advertisement had Einstein's head on top of a shirtless male with a tattoo that read, "e=mc²" and a caption, "Ideas are Sexy Too."
GM challenged whether Einstein conferred his publicity rights through a will to Hebrew University, arguing that New Jersey (where Einstein resided) didn't have such an explicit publicity rights statute at the time of his death in 1955, but a New Jersey federal judge recently declared that a common law right of publicity had already existed back then.
If before dying, Monroe had gone to Princeton University to teach a masterclass on blondes having more fun and Einstein had taken his theory of relativity to the Broadway stage, things might have turned out differently for their respective heirs. It's all relative.