According to a company that makes custom-made sex robots, Marilyn Monroe is the most frequently requested celebrity for one of its robots. While the company will produce something similar, it refuses to make a true lookalike of Ms. Monroe, stating that it would need approval from her estate. Is the company legally correct?
The right of publicity affords one the right to control the commercial use of his or her identity and protects that individual’s personality from commercial exploitation by others. One’s “personality” can include his or her name, face, voice, or likeness. It can also include a distinct aspect of one’s identity, for example, being a well-known game show hostess.
The right of publicity is a product of state law and varies from state to state. Some states acknowledge the right as part of a common law property interest, while others have enacted statutes providing for such a right. Some states, like Maryland, don’t recognize the right of publicity at all, but permit some form of protection through the tort of invasion of privacy.
As each jurisdiction varies in the basis for the right, so too does the scope of those rights. One such disparity is whether the right of publicity survives the death of the individual – otherwise known as a postmortem right of publicity.
As of today, approximately half of the states recognize a postmortem right of publicity. It should come as no surprise that the breadth of the postmortem right also differs. For example, Virginia allows for the right to continue 20 years past the individual’s death, Indiana for 100 years, and Tennessee affords 10 years of initial exclusivity and then may continue so long as the person’s name, image, or likeness are used continuously. Imagine what that means for Elvis Presley’s estate, when 40 years after Elvis’ death, he is still one of the top earning dead celebrities, having earned $27 million in 2016.
So what about Marilyn? In Milton H. Greene Archives, Inc. v. Marilyn Monroe, LLC, the limited liability company that holds the remaining assets of the Monroe estate claimed that it owned Monroe’s right of publicity. It then sought to prevent others from using her name and likeness for commercial purposes, including the advertising and sale of photographs of Monroe.
Whether the LLC owned Monroe’s right of publicity depended on which state she was domiciled in when she died because that state’s law would apply. There was some debate as to whether Monroe was domiciled in New York or California at the time of her death because she owned property in both places.
As Monroe’s estate was being distributed, the executor continuously maintained that she was domiciled in New York and submitted evidence in support of that contention, thereby avoiding California estate taxes. Notably, at that time, neither state acknowledged the right of publicity.
Now, both states recognize the right, but New York law does not provide any postmortem rights while California does. The LLC, despite decades of maintaining that Monroe was domiciled in New York upon her death, argued that she was actually domiciled in California.
Not buying the LLC’s about-face on the issue of domicile, the court rejected that argument holding that Monroe was domiciled in New York. Because New York does not provide postmortem rights, the LLC could not claim Monroe’s right of publicity. In other words, there is no enforceable right of publicity for Marilyn Monroe.
Interestingly, the New York legislature as recently as this spring had proposed legislation creating postmortem rights. However, after much criticism of the bill itself, it was pulled in July. Many believe another bill will be proposed at some point in the future.
Despite the court’s holding and that the New York legislature has not passed any law on the issue, the manufacturer of the custom-made sex robots is wise for not making exact replicas of Marilyn Monroe. Although Marilyn Monroe, LLC may not have the right of publicity to Monroe’s identity, it owns numerous registered trademarks of the name Marilyn Monroe, and seeks to protect its right to her image through Lanham Act false endorsement claims. The details of those types of claims will have to wait for another blog.
If you have questions about using another’s identity or protecting your own, Astrachan Gunst Thomas can help. Contact Jim Astrachan at 410-783-3550 (firstname.lastname@example.org) or Julia Bartels at 410-783-3553 (email@example.com).