Marilyn Monroe made it into the 9th U.S. Circuit Court of Appeals last week and I can’t let that slide by without a mention. It was all about publicity rights after all. This was a case of trying so hard to save on taxes when Monroe died that her estate cost itself potentially millions more in lost rights to control her posthumous publicity.
Executor’s of Monroe’s estate argued that she lived in New York at the time of her death in Los Angeles, so New York law applied to her tax liabilities. They did this to avoid California estate taxes. Big mistake.
Monroe ranks third on the Forbes Magazine list of “Top-Earning Dead Celebrities” list, with about $27 million in income for 2011.
Marilyn Monroe LLC and CMG Worldwide claimed ownership of Monroe’s publicity rights and two lawsuits in California and Indiana brought things to a head. They claimed that the Milton H. Greene Archives, Inc. violated Monroe’s posthumous publicity rights by selling images for unauthorized commercial purposes.
“The Milton Greene cases and other attempted enforcement actions by Monroe LLC… have forced Monroe photographers into lengthy litigation in order to simply defend their right to profit from their copyrighted photographs,” the panel wrote.
In 2007, the trial judge in Los Angeles issued a judgment in favor of the Greene Archives.
Ultimately, the 9th Circuit said the issue comes down to where she lived at the time of her death. The estate argued New York was for tax purposes only, because New York does not recognize the right to publicity, while California and Indiana do.
But the 9th Circuit held that Monroe’s estate is barred from asserting California’s posthumous right of publicity, because if she lived in New York for taxes, she lived in New York for everything else.
The estate only paid $800 in California estate taxes back in 1962, but now it has lost control of a market that may be in the neighborhood of $27 million a year.
Monroe had filed a will in New York in 1961, after her divorce from playwright Arthur Miller. She bought a house in Brentwood, Calif., in 1962 while filming “Something’s Got to Give,” but died on Aug. 5, 1962.
She willed $40,000 to her private secretary, 25 percent of her estate to her psychiatrist and the remaining 75 percent to her acting coach Lee Strasberg. Strasberg died in 1982 and left his share to his wife, Anna Strasberg. Her psychiatrist left her portion ot the Anna Freud Center for children in London.
They control Marilyn Monroe LLC.
Through forty years of probating Monroe’s estate, it was repeatedly argued that she lived in New York at the time of her death.
A short time after Greene prevailed in federal court, California state Senator Sheila Kuehl introduced a bill that would specifically overturn the Greene ruling and recognize Monroe’s rights.
Kuehl is no stranger to show business. As a child actress, she may be best known for her role as Zelda Gilroy in the hit TV series “The Many Loves of Dobie Gillis.” Based on the passage of that bill, the district judge reconsidered and held the California law applied to Monroe’s case retroactively.
Despite that legal detour, the 9th Circuit said New York never agreed to the estate’s efforts to change the law there. And because the estate consistently argued Monroe lived in New York, that’s where she lived for purposes of recognizing posthumous publicity rights.
“Allowing Monroe LLC to now represent that Monroe died domiciled in California would create the perception that either prior courts or we have been misled by representations about her domicile,” wrote Judge Kim Wardlaw.
“The need to preserve the dignity of judicial proceedings weighs heavily against allowing Monroe LLC to proceed down its newly charted path,” she wrote.
Case: Greene Archives v. Monroe, No. 08-56471