By David Walker

A federal court judge in New York has ruled that the estate of Marilyn Monroe cannot claim the actress was a resident of California¬–after   claiming previously that she was a resident of New York–just to take   advantage of a new California law meant to give the estate control over the licensing of images of Monroe.

The decision affirmed an identical decision handed down by a federal   court in California last March in separate but related case.

Both cases began several years ago over the question of whether   photographers and archives that own images of Marilyn Monroe can   license them for commercial use without permission from Monroe’s   estate. For years, the estate claimed so-called right-of-publicity to   Monroe’s likeness ¬–including images– and collected fees for commercial   uses of Monroe images on that basis.

Archive owners finally challenged the estate’s claim in separate   federal claims in New York and California. The archive owners won   decisively in both jurisdictions last year. Although Monroe’s   residence at the time of her death remains in question, the courts   said Monroe could not have passed rights of publicity to her heirs.  The reason was because right-of-publicity statutes didn’t exist in  either California or New York at the time of Monroe’s death in 1962.

California responded quickly by enacting a retroactive right of   publicity law at the urging of Monroe’s estate, so it could continue   to demand fees for commercial uses of Monroe images.

Similar legislation was shelved in New York last May, after in the   face of opposition and criticism that it was overly broad and probably   unconstitutional.

In light of the new California law, Monroe’s estate asked the federal   court in California to reconsider its ruling in favor of the Milton 
Greene Archives, which had originally challenged the estate’s right-of- publicity claim there.

Last March, the court in California ruled that the estate couldn’t   claim Monroe was a resident of one state, and then the other, simply   to suit its legal and financial interests.

As it turns out, the estate had claimed decades ago that Monroe was a   New York resident to avoid California inheritance taxes. Monroe’s will   was also probated in New York rather than California. So the estate   was barred from now claiming Monroe was a California resident to take   advantage of a favorable law there, the court in California said.

The New York court came to the same conclusion September 2, saying the   issue had been fully briefed and properly decided in the California action earlier this year.

“Their [the estate’s] argument was that [the judge in California] was   wrong. Now they’re going to have to say that two federal judges are   wrong,” says attorney Christopher Serbagi, who represented the Shaw  Family Archives in the case in New York.

Serbagi says the estate’s reaction to the ruling in New York was to   immediately appeal the prior ruling in California. He predicts they   will also appeal the ruling in New York.

Meanwhile, though, the bottom line for owners of Monroe images is that   they can continue licensing images of Monroe without interference from   the Monroe estate—at least until the estate manages to win an appeal,   or succeeds in convincing the state of New York to follow California’s   example by enacting a retroactive right of publicity law.

Related stories:
Image Archives Freed of Interference from Marilyn Monroe Estate

Photo Archives Claim Victory In Marilyn Monroe Suit

Another Postmortem Publicity Bill Surfaces In California