Fishers company loses Marilyn Monroe suit

An intellectual property licensing firm in Fishers has lost a federal lawsuit involving iconic images of the late actress Marilyn Monroe and the right of publicity.

U.S. District Judge Colleen McMahon for the Southern District of New York in Manhattan ruled Sept. 2 against CMG Worldwide and its client Marilyn Monroe LLC, finding in favor of the heirs of New York photographer Sam Shaw regarding the question of who owns rights to photos. The judge granted summary judgment in favor of Shaw's trust, the Shaw Family Archives.

"We're obviously disappointed and don't like to be on this end of a court ruling, but it is what it is," said Mark Roesler, CMG's chief executive officer.

The photographer's trust sued CMG and Marilyn Monroe LLC in April 2005, alleging copyright infringement relating to three of Shaw's images that were used on merchandise without permission. The Indiana company argued that it owned Monroe's right of publicity and asked the court to decide that the late actress was a California resident when she died in 1962.

Monroe's home at the time would have determined the right of publicity based on laws in California and New York – California passed a law in 1984 granting celebrities a post-mortem right of publicity, while New York doesn't recognize that right. A suit originally filed in the Southern District of Indiana was consolidated in California to address that issue.

In March, U.S. District Judge Margaret M. Morrow of the Central District of California in Los Angeles ruled on the similar federal suit and determined that CMG and Marilyn Monroe LLC didn't own rights of publicity in that state because the famous actress didn't reside in that jurisdiction at the time of her death.

In deciding the issue, the court looked at claims Monroe's estate made that she resided in New York. The judge agreed based on an inheritance tax appraiser who'd filed a report on that topic.

Attorneys have appealed that California ruling to the 9th Circuit Court of Appeals, but in the meantime Judge McMahon in New York has determined the two cases and issues are virtually identical. The only difference is that it involves a different photographer. She supported her California colleague's finding and came to the same conclusion.

Figures from 2007 show that Monroe has raked in more than $30 million in licensing fees in the last dozen years for everything from TV commercials to T-shirts – with roughly 25 percent of that windfall landing in CMG coffers.

CMG's Roesler said this ruling and the one in California have no bearing on any of its other 250 clients encompassing hundreds of celebrities such as James Dean, Elvis Presley, and John Wayne.

"What this (N.Y.) court is trying to say is that because it says she was domiciled in New York, Marilyn Monroe LLC can't prevent photographers from using images they took of her. This is a narrow decision and we fully expect to appeal," Roesler said.