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Wednesday, October 10, 2007

Marilyn Monroe's Legacy

For a woman who died 45 years ago, Marilyn Monroe has been in the news a lot lately.  On the one hand, a dispute is raging in California and New York over who has the rights to images of Marilyn, reported in this story (hat tip:  Wills, Trusts, and Estates Prof Blog).  The California legislature recently passed a bill that would make a celebrity's right of publicity bequeathable by will even if the celebrity died before rights of publicity were recognized by the courts in California.  The bill awaits the signature of California's governor, Arnold Schwarzenegger, who has personal experience with rights of publicity.  On the other hand, the BBC reported last week that several "lost" dresses worn by Marilyn are being exhibited in the U.K., including the famous dress Monroe wore in the publicity shot for The Seven Year Itch while standing over a New York subway grating.  So, if the California bill is signed, those who don't want to pay for the photo rights can go to Britain to see the dress instead.

Whether the right of publicity should be bequeathable is an interesting question.  On the one hand, if the reason for recognizing the right of publicity is that a celebrity's persona is an extension of her personhood, then it isn't obvious that such a right should continue to be protected after her death.  But if the right of publicity is meant to encourage people to work hard and become famous, so that they can reap the benefits of the persona they develop, then that same incentive argument might justify a power of testation over the right of publicity.  There is also an interesting constitutional issue here.  The Supreme Court held in Hodel v. Irving that a complete abrogation of the power of testation may be an unconstitutional taking.  Given that California and several other states recognize a common-law right of publicity, in addition to a statutory right, can the state take away the power to bequeath this publicity right by will without compensating the holder of the right?

The museum exhibition of Monroe's dresses raises another question.  In her will, Monroe bequeathed her "personal effects and clothing" to her acting coach, Lee Strasberg, "it being my desire that he distribute these, in his sole discretion, among my friends, colleagues and those to whom I am devoted."  In fact, however, as explained in a recent article by Alyssa DiRusso, He Says, She Asks:  Gender, Language, and the Law of Precatory Words in Wills, Strasberg never distributed any of Monroe's personal effects to anyone; in fact, he requested that some of her possessions be returned by a colleague to whom she had given them.

There is no indication that any of the dresses on exhibit in the U.K. were part of the bequest to Strasberg.  But suppose that they were.  Should Strasberg have a legal obligation to distribute them to her friends and colleagues?  DiRusso argues that women tend to use precatory language (deemed nonbinding) in wills where men would issue a binding command.  Here is the abstract of her article:

Precatory language is often insufficient to create a legally binding trust. Men and women choose different language to express themselves. What is the connection between these two statements?

This article reviews the current status of the law of precatory language, concluding that whether a will including precatory words (such as wish, ask, or recommend) will be construed to create a trust is at best a hit or miss proposition. The article continues to explore the psychology literature on differences in language ability and expression between men and women. Finally, the article ties these two disciplines together, analyzing original empirical data collected from 324 subjects and concluding that women are indeed more likely to use precatory language than men. The article concludes by noting the impact our heightened understanding of gender and precatory language has for courts, legal scholars, and practicing attorneys.

Should the court construe Monroe's words differently because she is female?  This is not an easy question, particularly when the will was drafted by an attorney rather than by the testator herself.  But DiRusso is right to call attention to the law's apparent blindness to gender differences in language.

It will be interesting to see whether Schwarzenegger signs the California bill.  If he does, Anna Strasberg, the third wife and heir of Lee Strasberg, will have a hugely profitable income stream from Marilyn's right of publicity, in addition to whatever benefit she received from the clothing and personal effects her husband decided to keep.  It is not clear that Marilyn knew Anna, let alone that Anna was one of her closest friends.  It seems a bit bizarre for Anna to profit from Marilyn's talent given her tenuous connection to Marilyn.  But perhaps that is a necessary consequence of respecting Marilyn's testamentary freedom.

Josh Tate

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