Marilyn's image fuels right-of-publicity row

Who can profit from the iconic image of Marilyn Monroe and thousands of other long-dead celebrities? Recent efforts by two federal courts and the California legislature to answer this complex question are doing little to resolve a heated legal debate with tens of millions in licensing fees at stake.

California first declared in 1985 that control over a deceased person's name, likeness, voice and image is descendible property that now endures 70 years beyond death. The California right-of-publicity law, among the broadest of the 28 or so states that offer protection, grants beneficiaries the ability to stop commercial uses of the celebrity's image — or profit from them. Thanks in part to the law, dead entertainers have become huge earners. Last year, Monroe's right of publicity reportedly earned more than $8 million for Anna Strasberg, the widow of acting coach Lee Strasberg, whom Monroe asked in her will to dispose of the leftovers (or "residuary" estate) she didn't give to anyone else.

Whether Strasberg and her licensing agent should be exploiting Monroe's fame was the subject of federal court decisions this year in California and New York. Both ruled against Strasberg, finding that individuals who died before 1985 could not grant publicity rights to anyone but their family members because the right to freely transfer such rights by will didn't exist when they died. For Monroe, who passed away in 1962 without a husband or kids, the California court held that the right of publicity fell into the public domain, allowing anyone to use the legendary bombshell's image to sell racy products like massage oils or underwear.

That's when the legislature stepped in. State senator Sheila Kuehl (D-Santa Monica), who starred in the 1959-63 CBS series "The Many Loves of Dobie Gillis," fast-tracked a bill backed by SAG and passed last Friday to override the decisions. It retroactively grants publicity rights to celebrities who died pre-1985 but says that if a will exists and the rights aren't specifically mentioned, they go to whomever the deceased granted the residuary, unless the person's family is already exploiting the rights.

Confused? Attorney Surjit Soni, who represents the photo archive that won the California case against Strasberg, says the law would cause thousands of families of celebrities who died pre-1985 to lose valuable rights if their famous relative left his or her residuary estate to someone else without specifically bequeathing them the right of publicity — which, of course, nobody did because it wasn't descendible before 1985. He predicts a slew of litigation if the bill becomes law.

"Giving a broad grant of rights to the residuary beneficiary goes against 200 years of law and is designed to benefit one person: Anna Strasberg," Soni says.

Kuehl says the issue is larger than Strasberg and that the law would help carry out the intent of celebrities to give their assets to whomever they chose, be it family or a charity or an influential acting coach.

"Those to whom the celebrity entrusts his or her image are the best to determine how it is used," she says, adding that she authored the bill only after the California judge noted a lack of clarity in state law.

California's celebrity governor, Arnold Schwarzenegger, has not indicated whether he will sign the bill. If he does, Soni says he'll sue to prevent its enforcement, meaning the issue, unlike the celebrities, likely is far from dead.