What’s in a Name When It’s Marilyn Monroe?

A federal judge in New York ruled that Marilyn Monroe’s heirs do not have the sole right to control the commercial use of her name, likeness and image, delivering control of an important share of the multi-million-dollar Monroe memorabilia industry to Monroe photographer Sam Shaw’s children. Photo Courtesy of the Shaw Family Archives. At issue in the lawsuit are the pictures of Monroe in the iconic flying skirt series, taken by photographer Sam Shaw and marketed through the Shaw Family Archives.  The question raised was whether the Shaw Family Archives could put those images on commercial products, like T-shirts. Thursday’s ruling was key in a case that has pitted lawyers for a company and licensing agent representing the interests of Anna Strasberg — the widow of Monroe’s renowned acting coach Lee Strasberg — against the company that holds the interests of the photographers’ three adult children in a Monroe memorabilia industry worth millions of dollars each year.    In the past, Marilyn Monroe LLC (MMLLC), in which Strasberg holds a 75 percent interest, and its licensing agent CMG Worldwide have dominated the industry in Monroe memorabilia.  They had filed suit in federal court in Indiana against the Shaw Family Archives, asserting that Shaw’s family had no right to benefit financially from commercially using the photos he took of Monroe because under Indiana law that right belonged to Monroe’s heirs.  The suit was based on the sale in an Indiana store of a single T-shirt that bore an image of Monroe and the Shaw Family Archives name on a label.  Click Here for Full Blotter Coverage. The MMLLC case hinged on a postmortem right to publicity that is recognized in some states and not in others. CMG, headquartered in Indiana, originally sought to make its case in the courts there, where the law recognizes the right of a person to pass on the use of his or her name or image under certain conditions, meaning that those heirs could use those images and names commercially and others couldn’t. That law, however, was passed about three decades after Monroe’s death in 1962 and in a state where the licensing agent operates but where Monroe had never lived. The case was later consolidated with a federal case in New York after the Shaw Family Archives attorney Christopher Serbagi filed a copyright infringement case there. Federal Judge Colleen McMahon issued a summary judgment against MMLLC. The 19-page decision noted at various points MMLLC’s arguments were unpersuasive and not supported in an intellectual property case that Judge McMahon noted had taken a torturous route.  Her decision also said the case was marked by assertions of property including a "persona" that did not exist at the time of Monroe’s death and laws which, even if they were in effect at the time of her death, would not have applied in the states in which the actress had legal residence, New York and California. "The Shaw Family has been significantly damaged by CMG’s and MMLLC’s longstanding representation in the marketplace that MMLLC owns the publicity rights to the name, likeness and image of Marilyn Monroe," said Christopher Serbagi who, along with David Marcus, represented the Shaw Family Archives. "Now that this Court has ruled that no such right exists, the Shaw Family will vigorously pursue compensation for the losses it has suffered as a result of the defendants’  interference with the Shaw Family’s legitimate licensing arrangements."