Why the Marilyn Monroe Estate Paid $3 Million For Photos of the Film Legend (Analysis)

As a result, an important lawsuit impacting the publicity rights of deceased celebrities could be near an end.
20th Century Fox

Since the death of Marilyn Monroe in 1962, the blonde bombshell continues to spark fascination, as evidenced by the recent release of My Week With Marilyn. But do Monroe's heirs benefit from such persistent popularity? Her estate is now making a $3 million bet that the answer will be yes, and that the public will continue to have a strong appetite for images of the actress who became a sex symbol in the 1950s.

Gaining from Monroe's enduring fame hasn't been easy for her heirs. Over the past decade, Marilyn Monroe, LLC, in conjunction with its manager CMG Worldwide, have been attempting to gain a cut whenever the late actress's image has been used in commercial endeavors. This aggressive stance has put them at odds with others who have a stake in the Monroe mystique, such as the various photographers who captured Monroe's life.

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For nearly six years, Monroe's estate has been in court with the family of one such photographer, Sam Shaw, who is now deceased. The litigation became closely followed by many observers, but it also caused Shaw Family Archives LTD to go into Chapter 11 bankruptcy. On Friday, Shaw's estate told a bankruptcy court about a new plan to regain financial footing and revealed that it had entered into a deal whereby the Monroe estate gets exclusive rights to images of the blonde bombshell in return for $3 million in guaranteed royalties.

The deal also leaves important legal questions unanswered.

Shaw was a legendary photographer who captured some of the biggest stars from old Hollywood, including Marlon Brando, Audrey Hepburn and Elizabeth Taylor. His images of Monroe were the most iconic, and after the photographer's death, his family began to license the images around, including to Target for T-shirts and to one documentary producer who was making a film entitled Marilyn's Man about the star's first husband.

Then CMG Worldwide, an Indiana-based intellectual property management firm, entered the picture. The firm had previously lobbied its home state to pass laws that generously conferred post-mortem publicity rights to deceased celebrities. When Monroe's photographer later sought to exploit Monroe images, CMG demanded a cut.

That set off litigation -- first in Indiana, where CMG demanded an injunction, and then in New York, where Shaw Family Archives argued Monroe was a citizen at the time of her death. Importantly, New York law wasn't as generous to dead celebrities as Indiana law.

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The lawsuits ended up being consolidated in a New York federal court, and in 2007, Judge Colleen McMahon ruled that regardless of Monroe's domicile at the time of her death, "Monroe could not devise by will a property right she did not own at the time of her death in 1962."

That might not be so in various other states outside of New York. Among the places where post-mortem publicity rights statutes have passed are California, Connecticut, Florida, Georgia,  Kentucky, Nebraska, Nevada, New Jersey, Ohio, Oklahoma, Illinois, Indiana, Texas, Tennessee, Virginia, and Washington.

Still, since publicity rights exist only at a state level, that leaves most states without this benefit to celebrity's heirs, forcing estates like Monroe's to fight for the right to enforce it through interstate commerce. On December 30, Marilyn Monroe, LLC, filed an appeal up to the 2nd Circuit in its long-running legal battle with the Shaw family.

But now, in a sudden swerve, the two sides seem to have made peace.

According to the documents filed by the Shaw family in its bankruptcy proceeding, $3 million from the Monroe estate will cover exclusive rights to license the image for a five-year term, with options to extend the agreement further. Although publicity rights differs on a state-by-state basis, there's no question about the reach of the copyright to Shaw's photographs of Monroe,

Reached for comment, one attorney for the Monroe estate wouldn't discuss whether this means the recently-filed 2nd Circuit appeal would be dismissed.

But an end seems likely, leaving legal observers to turn their attention to other ongoing cases, such as a coming hearing at the 9th Circuit Court of Appeals. In that dispute, concerning the exploitation of Jimi Hendrix's and likeness, a judge determined that the Washington Publicity Rights Act violated the due process and full faith credit clauses of the U.S. Constitution by allowing non-domiciled celebrities to essentially forum-shop.

E-mail: eriqgardner@yahoo.com

Twitter: @eriqgardner