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Shaw Family Archives Ltd. v. CMG Worldwide, Inc. - 486 F. Supp. 2d 309 (S.D.N.Y. 2007)


Both the California and Indiana postmortem right of publicity statutes recognize that an individual cannot pass by will a statutory property right that she did not possess at the time of her death. Cal. Civ. Code § 3344.1 (b)-(d) provides that, if no transfer of a personality's postmortem right of publicity has occurred before the personality's death, either by contract or by means of a trust or testamentary documents, then the rights vest in certain statutorily specified heirs. Since a testamentary transfer has no effect until the testator's death, such a transfer could not be effectuated before death for purposes of the California statute. Thus, any rights bestowed by § 3344.1 on a personality already deceased at the time of its enactment could not be transferred by will. It would vest instead in the persons provided for by statute. Ind. Code §§ 32-36-1-16 to -18 likewise provides that if a personality has not transferred her right of publicity by contract, license, gift, trust, or testamentary document, the right will vest in those individuals entitled to her property through the operation of the laws of intestate succession applicable to the state administering the estate and property of the intestate deceased personality, regardless of whether the state recognizes the property rights set forth under this chapter. 


Plaintiffs Marilyn Monroe, LLC (MMLLC) and CMG Worldwide, Inc. (CMG) filed a complaint against defendants Shaw Family Archives and Bradford Licensing Associates (SFA parties), in the United States District Court for the Southern District of Indiana, for violating Marilyn Monroe's right of publicity by using her name, image and likeness for commercial purposes without consent in violation of Indiana's Right of Publicity Act. Prior to being served in the Indiana action, SFA and others brought suit in New York against MMLLC and CMG seeking a declaratory judgment on whether there is any postmortem right of privacy or publicity in the name, likeness, and image of Marilyn Monroe as well as damages for certain alleged copyright violations, tortious interference with contractual relations and tortious interference with prospective economic advantage. The Indiana action was transferred to New York. MMLLC moved for summary judgment on the right of publicity claims, asserting that MMLLC is the holder of a 100 percent interest in Ms. Monroe's postmortem publicity rights under Indiana law, that Indiana's postmortem publicity statute applies to its right of publicity claims regardless of Marilyn Monroe's state of domicile at the time of her death, and that the SFA parties violated MMLLC rights under the statute by using Marilyn Monroe's name, photograph, image, and likeness on T-shirts that were marketed and sold in the State of Indiana and by maintaining a website that gives customers the ability to purchase licenses for the use of Ms. Monroe's picture, image, and likeness on commercial products. On the other hand, the SFA parties argued that Marilyn Monroe's right of publicity could not survive her because she died domiciled in New York, a state that does not recognize postmortem publicity rights, and that regardless of where Ms. Monroe was domiciled at the time of her death, MMLLC cannot show an ownership interest in Marilyn Monroe's right of publicity because she lacked the testamentary capacity to devise by will a right she did not own under the law of any state in which she could have been domiciled at the time of her death in 1962. The SFA parties sought summary judgment in their favor.


Is there a postmortem right to privacy or publicity?




Plaintiff MMLLC's action was dismissed by the United States District Court for the Southern District of New York. Because neither New York nor California (the only possible domiciles of the public figure at the time of her death) nor Indiana recognized descendible postmortem publicity rights at the time of the public figure's death, Marilyn Monroe could not transfer any publicity rights through her will. Moreover, the Court explained that regardless of the public figure's domicile at the time of her death, and regardless of any rights purportedly conferred after her death by the Indiana Right of Publicity Act, the public figure could not devise by will a property right she did not own at the time of her death.

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