Imagine for a moment that you earned a nickel every time that Marilyn Monroe’s “name, likeness, or persona” was exploited for commercial purposes.  Now imagine it was hundreds or thousands of dollars every time.   The California Legislature  tried very hard to gift wrap that bonanza for the beneficiaries of Monroe’s estate, primarily her acting coach Lee Strasberg’s widow, Anna.  In 2007, it passed a law which provided that the state’s statutory right of publicity — first created in 1985 — would be deemed to have existed at the time of death of any personality who died earlier, and was a property right that would pass to the residual beneficiaries of the personality’s estate even though it is not mentioned in the decedent’s will.

Monroe died in 1962, in a home that she owned in Brentwood, California.  But last week, in an opinion that infuses the legal doctrines of choice of law, privity, domicile, and judicial estoppel with all the glamour, mystique, and ineffable sorrow that keeps Marilyn Monroe among the ranks of Hollywood’s most bankable stars 50 years after her death, the U.S. Court of Appeals for the Ninth Circuit rejected Strasberg’s claims and left Monroe’s name, likeness, and persona in the public domain.   In its conclusion, the Court quoted Monroe’s own rueful assessment of her celebrity:  “I knew I belonged to the Public and to the world, not because I was talented or even beautiful but because I had never belonged to anything or anyone else.” However appropriate a coda to Monroe’s memoirs its ruling may be,  how did the Court arrive at a legal result so completely at odds with the professed intent of the California Legislature?  The answer is perhaps best summed-up in another, possibly apocryphal, Monroe aphorism quoted by the Court: “If you’re going to be two-faced, at least make one of them pretty.”

Strasberg sued two photographers, Milton Greene and Tom Kelley, for their commercial use of Monroe photographs for which they rightully owned the copyrights.  To take advantage of California’s retroactive posthumous right of publicity, Strasberg needed to show that at the time of her death Monroe was domiciled in California.  (One’s “domicile” is the place where a person has his/her permanent principal home to which he/she returns or intends to return; this was the same concept at issue in 2002 when Mitt Romney’s eligibility to run for Governor of Massachusetts was challenged, and in 2011 when Rahm Emanuel’s eligibility to run for Mayor of Chicago was challenged.)  Strasberg claimed that Monroe’s home in Brentwood, California was her domicle at the time of her death.

Unfortunately for Strasberg, for more than 40 years after Monroe’s death, representatives of her estate had consistently and succesfully maintained in various tax proceedings that she was domiciled in New York City where she had an apartment, and that she only temporarily occupied the Brentwood home while filming movies in California.  As her Executor had argued, while Monroe was in California working on her last film, Something’s Got to Give,  the New York apartment “was not sublet. It remained fully furnished and contained Decedent’s personal effects, clothing, and substantially all of its contents. Furthermore Decedent’s maid continued to look after and maintain said residence.”  She had purchased the Brentwood home, “primarily for the reason that she disliked living in hotels and preferred both the comfort and privacy of a private home.”

It is unclear how much the estate saved in taxes over the years by claiming Monroe was a New York domiciliary at her death, but one hopes it was quite lot.  (The estate had also succeeded in having New York law, rather than much more permissive Caliornia law, applied to defeat a case brought by a woman claiming to be Monroe’s unacknowledged daughter.)  In ruling against Strasberg and in favor of the photographers, the Court invoked the doctrine of judicial estoppel, under which a party which has asserted one position in legal proceedings, and prevailed, cannot “play fast and loose” with the courts by later arguing an inconsistent position in order to obtain some other advantage.

The Court found that this “is a textbook case for applying judicial estoppel. Monroe’s representatives took one position on Monroe’s domicile at death for forty years, and then changed their position when it was to their great financial advantage; an advantage they secured years after Monroe’s death by convincing the California legislature to create rights that did not exist when Monroe died. . . . There is nothing pretty in Monroe LLC’s about-face on the issue of domicile.”


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