Marilyn Monroe In The Public Domain

From the Stanford Center for Internet and Society:

Marilyn Monroe In The Public Domain
by Anthony Falzone, posted on May 17, 2007 - 9:09am.

Post-mortem publicity rights -- the right that lets celebrities' heirs control their likenesses and persona after they die -- have always puzzled me. They are a pure windfall to the heirs, with no possibility of creating the public benefit IP rights are supposed to incent. (Is a post-mortem publicity right really going to incent folks to do anything they wouldn't do anyway, e.g. become famous?)

Post-mortem rights have also frustrated me, as they are often raised as barriers to free discussion of historical events and figures.

The Southern District of New York has just issued a bombshell decision in this area. In Shaw Family Archives v. Marilyn Monroe LLC, it held that Marilyn Monroe's heirs cannot claim post-mortem publicity rights because she died before the enactment of the statute that creates them in California (and, for reasons that are not important here, Indiana). So, according to this Court, her image, likeness and persona are all in the public domain. Put it on a t-shirt. Or a bottle of wine. Use it to sell widgets. No permission necessary. (But please remember, copyrights to the photograph you might want to use are a whole spearate issue.)

Is this a big deal? You bet. Licensing dead celebrities is a multi-million dollar business. But California -- the center of the celebrity universe -- only passed the statute creating post-mortem publcity rights in 1984. Lots of the hottest dead celebrities (licensing-wise) died long before that, and millions of licensing revenue stands to disappear under this decision. The beneficiaries of this windfall will not let that money go without a fight. So I expect to hear a lot more about this issue.