Thursday, July 31, 2008
John C. Fuller (J.D. Candidate, 2009, Villanova University School of Law) has recently published his Casenote entitled Like a Candle in the Wind: Shaw Family Archives, Ltd. v. CMG Worldwide, Inc. and the Flickering Recognition of Marilyn Monroe's Right of Publicity in New York. (Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., 486 F. Supp. 2d 309, 2007.), 15 Vill. Sports & Ent. L.J. 299 (2008).
Here is the introduction to his article:
Every year, Forbes Magazine lists the highest-earning deceased celebrities. In 2007, the top thirteen now-gone actors, authors, and musicians earned a combined $232 million from the distribution of their works and the licensing of their likenesses. Not surprisingly, the iconic American sex symbol Marilyn Monroe is a perennial member of this elite list. Forty-six years after her death, the great demand for Monroe's persona earned her estate $7 million*300 in 2007, primarily derived from licensing agreements for advertisements and merchandise. A recent battle over licensing infringement may, however, leave Monroe's heirs without control over her likeness.
In Shaw Family Archives, Ltd. v. CMG Worldwide, Inc., the United States District Court for the Southern District of New York found that in 1962, the year Monroe died, New York did not recognize a transferable postmortem right of publicity. Well-settled New York estate law allows testators to devise only the transferable rights they possess at the time of their deaths. Because the court found that the right of publicity did not exist, Monroe did not possess the right when she died; therefore, her will could not have conveyed the right to her heirs. This finding defeated any claim of ownership and thrust Monroe's persona into the public domain, where anyone is free to use it.
This note will explore the existence of a descendible right of publicity in New York State at the time of Monroe's death. Section II will describe the facts and procedural history of Shaw Family Archives. Section III will trace the evolution of the right of publicity, including both the tort-based right of privacy and the modern *301 property-based right of publicity. Section IV will evaluate the court's holding that Monroe's estate is not the predecessor-in-interest to her right of publicity. Section V, after thoroughly examining New York law in this field, will evaluate the appropriateness of the court's determination. Finally, Section VI will discuss the effect this decision may have both on New York law and the estates of other legendary American entertainers.